About this Evidence Law Module

The Evidence Law Module has been produced by National Institute of Public
Administration (NIPA). All modules produced by the Institute are structured in the same
way, as outlined below.

How this Evidence Law Module is structured

The Module overview

The module overview gives you a general introduction to the module. Information
contained in the module overview will help you determine:
 What you can expect from the course.
 How much time you will need to invest to complete the course.

The overview also provides guidance on:

 Study skills.
 Where to get help.
 Assignments and assessments

 Activity icons
 Units.

We strongly recommend that you read the overview carefully before starting your study.

The Module content

The Module is broken down into Seven (07) units. Each unit comprises:

 An introduction to the unit content.

 Unit outcomes.
 New terminology.
 Core content of the unit with a variety of learning activities.
 A unit summary.
 Assignments and/or assessments, as applicable.

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For those interested in learning more on this subject, we provide you with a list of
additional resources at the end of this Evidence Law Module; these may be books,
articles or web sites.

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Your comments
After completing this Evidence Law Module, we would appreciate it if you would take
a few moments to give us your feedback on any aspect of this course. Your feedback
might include comments on:

 Content and structure.

 Reading materials and resources.
 Assignments and Assessments.
 Duration.
 Support (assigned tutors, technical help, etc.)

Your constructive feedback will help us to improve and enhance this course.

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Welcome to Evidence Law Module
This Evidence Law Module gives an in-depth knowledge of Evidence Law.

Module Learning outcomes

After studying this module you should be able to:

Time Frame

Expected duration of this Module is 6 months

Formal study time required is 4 hours per week
Self-study time recommended is 6 hours per week

Study skills
As an adult learner your approach to learning will be different to
that of your school days: you will choose what you want to study,
you will have professional and/or personal motivation for doing so
and you will most likely be fitting your study activities around
other professional or domestic responsibilities.
Essentially you will be taking control of your learning
environment. As a consequence, you will need to consider
performance issues related to time management, goal setting, stress
management, etc. Perhaps you will also need to reacquaint yourself
in other areas such as essay planning, coping with exams and using
the web as a learning resource.

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 Your most significant considerations will be time and space i.e. the
time you dedicate to your learning and the environment in which
you engage in that learning.
We recommend that you take time now—before starting your self-
study—to familiarize yourself with these issues. There are a
number of excellent resources on the web. A few suggested links
are:

 http://www.how-to-study.com/
The “How to study” web site is dedicated to study skills
resources. You will find links to study preparation (a list of nine
essentials for a good study place), taking notes, strategies for
reading text books, using reference sources, test anxiety.

 http://www.ucc.vt.edu/stdysk/stdyhlp.html
This is the web site of the Virginia Tech, Division of Student
Affairs. You will find links to time scheduling (including a
“where does time go?” link), a study skill checklist, basic
concentration techniques, control of the study environment, note
taking, how to read essays for analysis, memory skills
(“remembering”).

 http://www.howtostudy.org/resources.php
Another “How to study” web site with useful links to time
management, efficient reading, questioning/listening/observing
skills, getting the most out of doing (“hands-on” learning),
memory building, tips for staying motivated, developing a
learning plan.
The above links are our suggestions to start you on your way. At
the time of writing these web links were active. If you want to
look for more go to www.google.com and type “self-study
basics”, “self-study tips”, “self-study skills” or similar.

Need Help? In case you need help, you can contact NIPA at the
following website, phone number or you can email.

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 www.nipa.ac.zm
NIPA-Main Campus – Outreach Programmes Division
Phone Numbers:+260-211-222480
Fax:
e-mail address:opd@nipa.ac.zm
The teaching assistant for routine enquiries can be located
from the Outreach Division from 08:00 to 17:00 or can be
contacted on the numbers and email address indicated
above.

Library
There is a library located at the main campus along
Dushanbe Road. The library opens Monday to Friday from
08:00 to 17:00.

There shall be three assignments given for this module.

Assignments
The assignments should be sent by post or email them to the
provided email addressed to the Outreach Programmes
Division – Nigeria Hall.
Assignments should be submitted to Outreach Programmes
Division Registry.

Assessments There shall be a minimum of three (03) assessments given to

the students undertaking this subject
These assessments shall be teacher marked assessments.
The assessments shall be determined and given by the course
tutors after you have covered a number of topics
The teacher/tutor shall ensure that the assessments are marked
and dispatched to the student within a period of two weeks.

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Getting around the Evidence Law Module

Margin icons
While working through this Evidence Law module, you will notice the frequent use
of margin icons. These icons serve to “signpost” a particular piece of text, a new task
or change in activity; they have been included to help you to find your way around
this Administrative Law module.

A complete icon set is shown below. We suggest that you familiarize yourself with
the icons and their meaning before starting your study.

Activity Assessment Assignment Case study

Discussion Group activity Help Note it!

Outcomes Reading Reflection Study skills

Summary Terminology Time Tip

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Learning tips
You may not have studied by distance education before. Here are some guidelines to
help you.

How long will it take?

It will probably take you a minimum of 70 hours to work through this study guide.
The time should be spent on studying the module and the readings, doing the
activities and self-help questions and completing the assessment tasks.

Note that units are not of the same length, so make sure you plan and pace your work
to give yourself time to complete all of them.

About the study guide

This study guide gives you a unit-by-unit guide to the module you are studying. Each
unit includes information, activities, self-help questions and readings for you to
complete. These are all designed to help you achieve the learning outcomes that are
stated at the beginning of the module.

Activities, self-help questions and assessments

The activities, self-help questions and assessments are part of a planned distance
education programme. They will help you make your learning more active and
effective, as you process and apply what you read. They will help you to engage with
ideas and check your own understanding. It is vital that you take the time to complete
them in the order that they occur in the study guide. Make sure you write full answers
to the activities, or take notes of any discussion.

We recommend that you write your answers in your learning journal and keep it with
your study materials as a record of your work. You can refer to it whenever you need
to remind yourself of what you have done.

Unit summary
At the end of each unit there is a list of the main points. Use it to help you review
your learning. Go back if you think you have not covered something properly.

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Studying at a distance
There are many advantages to studying by distance education – a full set of
learning materials as provided, and you study close to home in your own
community. You can also plan some of your study time to fit in with other
commitments like work or family.

However, there are also challenges. Learning at a distance from your learning
institution requires discipline and motivation. Here are some tips for studying at a
distance.

1. Plan – Give priority to study sessions with your tutor and make sure you allow
enough travel time to your meeting place. Make a study schedule and try to
stick to it. Set specific days and times each week for study and keep them free
of other activities. Make a note of the dates that your assessment pieces are
due and plan for extra study time around those dates.

2. Manage your time – Set aside a reasonable amount of time each week for
your study programme – but don’t be too ambitious or you won’t be able to
keep up the pace. Work in productive blocks of time and include regular rests.

3. Be organized – Have your study materials organized in one place and keep
your notes clearly labeled and sorted. Work through the topics in your study
guide systematically and seek help for difficulties straight away. Never leave
this until later.

4. Find a good place to study – Most people need order and quiet to study
effectively, so try to find a suitable place to do your work – preferably
somewhere where you can leave your study materials ready until next time.

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5. Ask for help if you need it – This is the most vital part of studying at a
distance. No matter what the difficulty is, seek help from your tutor or fellow
students straight away.

6. Don’t give up – If you miss deadlines for assessments, speak to your tutor –
together you can work out what to do. Talking to other students can also make
a difference to your study progress. Seeking help when you need it is a key
way of making sure you complete your studies – so don’t give up.

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INTRODUCTION OF EVIDENCE

In the ordinary way of speech, evidence is that which makes evident something to someone, as
when a person who heard a disputed remark says that he lies in the evidence of one of his senses
namely his own ears. However, to a lawyer or student of Law, Evidence is that all legal means
which make evident facts to judicial inquiry or investigation which could be a tribunal or court.

It will be sufficient for now to mention that a fact may be not only the object of perception by
any one of the five senses, such as a sound heard, or anything seen, smelt, tasted or touched, but
also the subject of consciousness or idealism, whether empirical, physical sensation such as pair
or a Mental condition. Read a case of Edgivigton V. Fitzi Maurice (1885) 29 Ch Div 459to 483.

In this case it was observed that the state of a man’s mind is as much a fact as the state of his
digestion. However, fact is distinguished from both an opinion and Law. An opinion as to what a
person might have been expected to say has no place in an inquiry as to the fact of what words
he actually spoke, to give an opinion as to the legal effect of facts is often the function not of a
witness but of the legal Tribunal. But in some special cases an opinion is treated as a fact and
therefore as the appropriate subject of Evidence. Evidence therefore is applied to more than
conception. Evidence may be facts themselves or as methods used to bring them to the NOTICE
of the Judicial Tribunal or Judicial Investigation.

In one sense evidence of a fact may be other facts from which the main fact is deduced or
inferred. One of the legal classical legal writers BENTHAM once defined Evidence as “any
matter of fact, the effect, tendency or design of which is to produce in the mind a persuasion,
affirmative or disaffirmative, of the existence of some other matter of fact”. And further stated
that Judicial evidence as being “the evidence received by courts of Justice in proof or disproof of
facts, the existence of which comes in question before them”. Therefore in this course you will
learn the relationship of one or more facts to another fact which may be apparent to the court or
tribunal by instantaneous mental process or may require demonstration by arguments.

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Secondly, Evidence may mean the means or methods of proof, that which makes evident a fact is
the means by which it is established as true, which is means of proof. Proof sometimes is
referred to as evidence.

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UNIT ONE: LAW OF EVIDENCE

Introduction

Evidence is all legal means exclusive of mere argument which tend to prove or disapprove any
matter of fact, the truth of which is submitted for judicial investigation.

Learning Outcomes

After completing this Unit, a student should be able to:

 Define evidence
 Classify all types of Evidence
 Demonstrate other categories of Evidence
 Describe General standards applicable to all categories of evidence.

What is evidence?

The Oxford Advanced Learners ‘Dictionary of Current English (6th Edition) assigns two
meanings to the word “evidence”

(a) “The facts, signs or objects that make you believe that something is true.” Or
(b) “The information that is used in a court of law to try to prove something”

“Something” mentioned in both definitions – vague and therefore wide i.e. evidence is a very
wide area.

Legal Definition:

At law, evidence is generally defined to include all the facts, documents, materials, objects,
statements and any other legal means that may be used to establish a matter in issue. In other

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words, evidence broadly means all things that tend to prove or disapprove a fact in issue.
Evidence is anything that can prove or disapprove a matter in issue.

Thus evidence is extremely wide. The main problem is how to apply the principles of evidence
to particular types of evidence available. For practical purposes, evidence is categorized to help
us know how to apply these principles to the evidence we have.

Categories of Evidence:

(a) Direct Evidence: This refers to facts that are actually by a witness using one or more of that
witness’s five senses i.e. sense of sight, smell, hearing, feeling (or touch) and taste.

In the courtroom, this category of evidence is referred to in order to distinguish it from

circumstantial or indirect evidence and hearsay evidence, which categories attract more strict
rules of admission as evidence. The courts are easily persuaded by direct evidence. It is the
strongest form of evidence – but note, not all people perceive things in the same way – a person
from Chilubi Island coming to Lusaka for the first time will perceive e.g. the speed of traffic
very differently from a Lusaka resident. Blind people will have heightened or enhanced other
senses to compensate for their visual impairment. As a lawyer it is important to know how to use
the perceptions of your witnesses to further/ support your case.

(b) Real Evidence: This category refers to material objects that can be produced or shown to the
court for inspection during trail e.g assets, cash, cars, houses, farms (the court can be taken to
site e.g to see if the beacons have been moved), samples, sketch plans, maps, scars etc. The
courts are easily persuaded by this type of evidence, particularly when a connecting link to
the matter in issue is established.

(c) Best or Orginal Evidence: This category is also referred to as primary as opposed to
secondary evidence, and refers to original and authenticated documents, video / audio tapes,
DVDs etc. as oppossed to photocopies, carbon copies, duplicates and pirated video / audio
tapes, DVDs etc. In practice this category distinguishes between superior or primary
evidence (as it is the “best) from inferior evidence. The courts attach more weight to superior
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 / primary evidence as against inferior or secondary evidence. The latter may only be
admissible upon proof that the original is lost, destroyed or in the possession of someone else
outside jurisdiction. When bringing secondary evidence you must ask the witness
“foundation” questions to show how the original was lost / destroyed etc. i.e. “Is this the
original?” “Why is it not?” “Where is the original?”

(d) Circumstantial Evidence: This category refers to evidence of facts from which a fact in issue
canbe deducted. Although the court in criminal cases may convict on the basis of VERY
STRONG AND COMPELLING circumstantial evidence i.e. there can really only be one
logical conclusion drawn from circumstantial evidence, the courts are generally very
reluctant to do so unless the evidence is corroborated or supported by some other
independent evidence. Thus, circumstantial evidence, while admissible, is generally suspect
and inonclusive unless it is strong and compelling and /or corroborated. E.g. skid marks on
the wrong side of a road that were made immediately before an accident. This is evidence
that one of the drivers was on the wrong side of the road and travelling fast from which other
facts can be deducted i.e. the driver of that car was in the wrong. Can be corroborated by a
police sketch of the scene.

(e) Hearsay Evidence: This category refers to evidence of a witness who relates what he was
told by another person, who is not available to the court, but who may have perceived the
event in issue or to obtain the information from another source. This type of evidence may
also be found in the contents of documents, letters, statements, opinions, declarations, etc.
[Hearsay rule: hearsay is not admissible EXCEPT – i.e there are exceptions to the rule.
Hearsay evidence is intrinsically unrealiable as people’s perceptions of what other people
told them may differ from each other and from what was actually meant by what was told to
them]. Hearsay evidence is the most restiricted category of evidence and as a general rule is
not admissible in court. Where it has been admitted it can lead to a mistrial and much
valuable time and resources are lost. There latent dangers with using hearsay evidence as the
“whispering game” shows. However, it should always be remembered that the rule against
hearsay evidence is a general rule, not an absolute or strict rule, and there are exceptions and
exemptions. E.g hearsay contained in public documents such as Title deeds where the
persons drawing up the original deeds are long since dead but where a certificate of title is

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 taken as conclusive proof of title/ownership. Also, many statutes provide for the admission of
this type of hearsay evidence e.g. The Evidence Act Cap 43 and The Evidence (Bankers
Books) Act Cap 44.Thus documentary hearsay evidence in Banker’s books is admissible
but, in both criminal and civil cases, you have to obtain a court order first before it can be
admitted. [Note: a “banker” is not a bank teller but more senior banking professionals]. Thus
hearsay evidence may be admitted at the discretion of the court or it may have to be admitted
under the provisions of a statute. However, these are very limited situations: exceptions –
expert opinion evidence, dying declarations, similar fact evidence, public records, business
records, informed lay opinion based on perceived facts or data which a witness cannot be
expected to verbalise in court.
________________________
Note: Zambia does not have an Evidence Code unlike most other countries, although a draft
code was prepared in the 1990s. This makes life difficult and there are over 50 Acts that deal
with evidence e.g. National Assembly Act has sections relating to the proof of matters laid
before the Assembly and it uses very different principles of evidence from those used by
courts of law. Supreme Court Act – the “slip rule” – the SCZ can admit new evidence. All
this uncertainty makes makes the rules of evidence in Zambian courts unpredictable. See
Judge Phiri’s paper to State Advocates on the shortcomings of evidence rules in Zambia
[2005]. There is an Evidence Act (Cap 43) but it has only 9 sections and is very poor. Section
2 does usefully define a “document” as “Document includes any device that records, stores
or disseminates information.” This brings IT into Zambian law. This is the age of IT,
terrorism, hackers, cell phones and other electronic gadgets and the evidence rules must
keep pace with these new realities, as they are doing e.g. in UK. See SCZ judgment on
computer generated evidence in the Pilatus Engineering case.

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 General Standards Applicable to all Categories of Evidence

Counsel has to show that the evidence he presents to court conforms to these general
standards through questions to witnesses and their answers to these questions.

(a) That the proposed evidence is relevant. This rule can be very complex in practice. E.g. in
rape cases, there is the defence of consent. Defence lawyers use private investigators to
get evidence on the complainant, to show that the complainant is “liberal” or “loose” and
so cast doubt on her accusation of a non-consensual sexual relationship with the
defendant. The question raised here is how far should this go? Can the defence raise
anything relating to the complainant’s sexual history? What is relevant and what is not?
Similarly, the complainant can raise evidence from the defendant’s past showing a
disposition to high sexual activity. In each case counsel has to be industrious.
(b) That the proposed evidence is authentic / genuine.
(c) That the proposed evidence is from a competent source. This is very important as, if the
source is incompetent, the evidence is unreliable. See CPC on spouses, family members
etc.
(d) That the proposed evidence was at one time or another in the custody of the witness. i.e.
the witness had access to it, otherwise it is hearsay.

Note: These standards give protection to both sides / parties in a trial.

The sources of Evidence in Zambia are various, such as customary law, common law and many
statutes both colonial and post-independence- enacted to regulate particular aspects of the law of
evidence. The Zambia legal system is the product of its history. The most important is the
English Law (Extension of Application) Act Chapter 4 of the laws of Zambia. This provides:

(a) The common law

(b) The doctrines of equity
(c) The statutes which were enforced in England on 17th day of August 1911 A.D;
(d) Any later English statutes applied to Zambia shall be a force in Zambia. The development
of Laws of evidence have been influenced by decisions of English speaking courts from
all over the world.

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 Unit Summary of the Unit

In this unit you have learnt about Evidence all categories and the standards of categories of
Evidence.

Activity 1.0
Discuss the following:-
(1) Prima facie and conclusive
(2) Best and inferior Evidence

References:

(i) The law of Evidence in Zambia by Hatchard and Munandulo Multimedia Lusaka
1991
(ii) Introduction to Evidence by G.D. Nooks Sweet & Maxwell London 1967.
(iii) DPP V. Kilburn (H.L) 1973
(iv) Evidence ACT Nigeria
(v) Kurume V. The Queen (PC) 1954

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 UNIT TWO: EXHIBITS

Introduction An exhibit is a physical object submitted for inspection, relevant to

the matter in issue.

Learning Outcomes

After completing this Unit, you should be able to:

 Define Exhibit
 Demonstrate the relevance
 Understand Authenticity
 Custody of exhibit
 Proof of competence.

Exhibits are evidence and every advocate must know how to manage exhibits both before and
during trial. Exhibits in any trial (criminal or civil) must invariably fall into one or more of the
five categories of evidence and their sub-categories. In other words, the basic rules of evidence
relating to production and admission before court must always be applied i.e. there must be proof
of (i) competence (ii) relevance (iii) authenticity and (iv) custody. Failure of such proof will
render the exhibit inadmissible and it will be discarded or have no probative value to your case.
Proof will render the exhibit inadmissible and it will be discarded or have no probative value to
your case. Proof of competence etc. is obtained through the advocate by his examination of
witene

1. What is your name?

2. What is your age?
3. What is your address?
4. What is your occupation?

For expert witnesses:

1. As a state pathologist what do you do?

2. How long have you been a state pathologist?

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 3. Where did you qualify as a state pathologist?

These are “foundation” questions that must be asked in an examination in chief first to establish
competence, relevance, authenticity and custody of witnesses and their exhibits. Exhibits and
witnesses go hand in hand as exhibits are brought to court through the examination of witnesses.

_________________________________

To establish e.g. that the witness is over 18.

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The trial court will and must always exercise reasonable control over the proceedings. However,
the convenience or order of presenting witnesses and their exhibits always remains with the
advocate who must balance that convenience or order with the primary objective of presenting
evidence including exhibits in a logical and easily understood fashion. [Should not coach
witnesses]. The advocate must plan the order of calling witnesses and their exhibits to best
demonstrate the flow of his case. Thus, the investigating officer has exhibits “post facto” i.e.
after the fact. Do not call him/her first. He/She should be called much later after others have been
called to give evidence to the exhibits connected to their testimony. It is also good for the first
witness to be a very strong witness for your case to take the steam out of the other side and set a
good momentum for your case.

The rules and sub-rules relating to the mode of proof (e.g. no leading questions) or order of
examination of witnesses are too numerous to list here but suffice to say that these rules and sub
rules are designed to achieve the following:

(i) To have the questioning of witnesses and the presentation of their exhibits effective in
order to assist the court to ascertain the truth.
(ii) To avoid needless consumption of time.
(iii) To protect the parties in a dispute including accused persons and their witnesses in
criminal cases from harassment or undue embarrassment or prejudice.

[Note: Pleadings define the issues in a civil case before trial so as to save time at trial.
Information from the DPP serves the same purpose in criminal trials].

An examination of the many attendant rules reveal that the whole issue of the admission of
exhibits as evidence can be reduced to two practical questions which must at all times be
resolved by each advocate and by the court. The perception of real evidence is usually by sight,
but it may involve other senses. A musical instrument may be both seen and heard; weapons may
be seen and touched to ascertain their sharpness or weight; and the contents of a bottle may be
limited to objects which are inspected, but includes those otherwise examined. The main
limitation on physical evidence is that some objects are too big to be produced in court.
However, nay movable material can be inspected on site or scene of crime of incidence by the
court.

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 Unit Summary

In this unit you have learnt about what an EXHIBIT IS; how it is supposed to be handled and
presented for judicial investigation.

Q Activity 2.0

Question One: Is this individual item of evidence admissible?

In resolving this question, the advocate must ensure that the court is
persuaded to make the following findings:
(a) That the item originates form a competent source.
(b) That the item is logically relevant – in order to qualify as
logically relevant.
a. The evidence must have some logical connection to the facts
in dispute or matters in issue in the case. i.e. the evidence
must have a tendency (connection) in reason to increase or
decrease the probability that one of the disputed facts exists.
i.e. the evidence must be material.
b. The evidence must be authentic.
c. The evidence, including exhibits, must be legally relevant. To
resolve the question of whether evidence is legally relevant
the following sub-questions must be resolved:
a. Are there internal probative dangers that outweigh the
probative value of the evidence that can tempt the court to
decide on an improper basis? What is probative danger?
E.g. is the evidence unduly prejudicial, embarrassing,

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 time consuming or distracting (red herring) to the court.
b. Is there some extraneous reason to exclude the evidence
or exhibit e.g. lawyer/client privilege, the witness is a
spouse etc.

Question Two: When considered cumulative (i.e. in total) are all

the items of evidence sufficient to prove the fact in issue.

In other words, is there sufficient probative value in the evidence to

support the judgment in a particular way. Although, strictly
speaking, this question is ultimately resolved by the court, each
advocate in the case must try to persuade the court to resolve the
question of the sufficiency of evidence in his/her favor on behalf of
the client.

Readings: EVIDENCE IN ZAMBIA BY

1. J. Hat chard & Munadulo

2. Liswaniso V. The people S.C.Z.1976

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UNIT THREE:

HOW EVIDENCE IS PRESENTED IN COURT

Introduction

Exhibits will be admitted if only relevant and standards of Burden of proof are obliged to.

Learning Outcomes
After completing this Unit, a student should be able to:

(i) Understand primary as opposed to secondary evidence.

(ii) Demonstrate steps in presenting exhibit.

The steps an advocate should take in order to introduce any item of evidence.

An outline of the steps an advocate should take in order to introduce any item of evidence and to
make it admitted into court is as follows, but note that if you have agreed bundles in a civil case
these steps are not needed. If however the bundles are not agreed, and in criminal cases, you
need to follow the following steps. Steps 1 to 3 are steps relating to the production of exhibits,
step 4 and 5 relate to the admission of exhibits into evidence:

Step One:

The advocate must make the witness say something about the intended exhibit after which the
party proposing it shows the intended exhibit to the opposing advocate.

Step Two:

The intended exhibit must be handed over or shown to the witness by the party proposing it. In
return the witness must be made to specifically refer to the intended exhibit, without announcing.

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Step Three:

The advocate must ensure that the witness sufficiently identifies the intended exhibit after which
the intended exhibit must be marked with some unique mark / symbol/ number to identify it. In
Zambia the following are used “ID 1” “ID 2” “ID 3” etc. Whilst some judicial officers expect the
advocate to make an application to have an exhibit marked as such, this should not be necessary,
so long as the court is satisfied that the witness has sufficiently identified it.

Step Four:

The proposer of the intended exhibit must lay the necessary evidential foundation for its
admission as evidence. Depending on what the intended exhibit is and how it fits into the trial,
the advocate must establish through the witness(es) the necessary foundation for its admission
into evidence. At the minimum the evidential foundation for its admission into evidence. At the
minimum the evidential foundation must include the following:

(a) Authenticity i.e. the exhibit is what it purports to be.

(b) Custody i.e. that at one time or another, or at the current time, the witness had custody of
the exhibit. Note: Exhibits are produced by the witnesses who have custody of them.
(c) Relevance i.e. the exhibit tends to prove or disprove one of the propositions in the case or
any matter in issue.
(d) If the intended exhibit is a document, that it is the best or primary evidence. If it is
secondary, it must be shown that primary evidence is unavailable.

Step Five:

The proposer of the intended exhibit must offer it into evidence. The magic question is “Do you
wish to produce this item as part of your evidence?” Thus step is simple but also easily
forgotten. [Similarly, if an information is change and a new plea to the new charge is not taken
by the court, this can be grounds for nullifying the proceedings/ appeal]. The item will then be
admitted into evidence if there is no objection and it will then be marked with an exhibit number

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e.g. “Exhibit P1” “Exhibit P2”, “ Exhibit P3” etc. Note: If one intended exhibit is not admitted
e.g. because of a successful objection, and was identified as, say “ID 2” omit Exhibit P@” from
your numbering of exhibits as this will avoid confusion, especially if there are many intended
exhibits and admitted exhibits.

Step Six:

Objections to the admission of items as exhibits must be made, argued and decided upon soon
after the offer is made.

Step Seven:

If the item is admitted as evidence that exhibit or relevant portion of it will be read out and
published in the court room by the witness who offered it. The exhibit will then remain part of
the court record and must then be considered by the trial court in the final analysis.

Documentary Evidence – Primary and Secondary, Public and Private

Evidential challenge of documentary evidence. Section 2 of the Evidence Act Cap 43 defines the
word “document’ as follows:

“Any device by means of which information is recorded or stored and books, maps, plans and
drawings”

It is important to see the elements of proof to ensure that the evidence is admitted. Public
documents normally require no authentication. In contrast, execution of private documents must
normally be proved by strict proof i.e. calling the author(s) to testify as to the truth of the
document or calling attesting witnesses or proof by handwriting or proof by signature. How is
authenticity to be shown? Handwriting or signature is proved by one of the following methods:

(a) Calling the writer or

26
(b) Calling a witness who saw the document being written or signed, or
(c) Calling someone who is acquainted with the handwriting i.e. a secretary, friend, family
member etc.
(d) Comparison of handwriting and signature by an expert, or
(e) By admission of the parties i.e. where parties agree.

Note: Comparison of handwriting and signature by an expert is called a forensic expert.

Handwriting tools and tool mark experts.

Sleep rule: Only rule allowing the Supreme Court to take fresh evidence in a matter already
decided. Involved a Travel Agency whose managers were deported on false documents (forged
deportation order) and their business obtained by fraud.

Besides proof of execution, the contents of the document must be proved by primary or original
documentary evidence. i.e. you have to have the originals to prove the contents. By primary
evidence we mean the production of the original documents in court. However, secondary
evidence may, in certain circumstances be allowed. These circumstances include the following:

(a) Where the original document is shown/proved to have been lost or destroyed.
(b) Where it is inconvenient or physically impossible to produce the original document- but
must lay the foundation for admittance of secondary evidence.
(c) Where the original document is held/ is in possession of a stranger to the proceedings
who rightly refuses to produce it on grounds of privilege. (A non privilege stranger may
be compelled to produce the document under a subpoena duces tecum (a compulsion to
produce a document) or by a summons to witness)
(d) Where the original document is held or is in possession of the opposing party who refuses
to produce it after a notice to produce is issued and filed. The foundation for admitting
secondary evidence is the notice to produce. [Note: A notice to produce requires the
opposing party to produce the original document in court. However, a notice to produce
can only be used in a trial without pleadings but you want the other side to produce an

27
 original document during trial. If there are pleadings then documents should have been
obtained during the pre-trial exercises of discovery and inspection].
(e) Where the proceedings are interlocutory or preliminary i.e. proceedings are in chambers-
secondary evidence may be admissible as most evidence is by way of affidavit. [Note:
chamber applications commenced by summons or originating notice of motion with
supporting affidavits. Affidavits have to be answered- they “fight” each other. Note also,
you can challenge the certified record of the court by affidavit in opposition, the
challenging affidavit will succeed. All witnesses who notice that the record is incomplete
must file an affidavit]

Where the contents of a public document must of necessity to be proved (e.g. a public document
is alleged to be a forgery – see travel agent case where deportation order was forged), these may
be proved by the production of an examined copy by a witness who compared it with the original
or by production of a copy certified by a public officer who has had charge of the original. In
addition there are a number of statutes that provide that where a document is produced
purporting that it is from a certain public office, the document will be accepted as evidence
whether or not it has been certified or authenticated in the usual way. In this category are
documents that bear the signatures of magistrates, judges, the DPP, the Attorney General, the
Commissioner of Lands, the Registrar of Lands, a coroner, a medical doctor, Government
Gazettes, State Pathologists etc.

In summary there are four usual methods of proving private documentary evidence.

Cases:
Grant v. S.W. and Co. Properties Ltd. [1975] CH 185; [1976] All ER
Derby and Co. Ltd. V. No.9 [1981] 2 All ER 901
Shamwana v The people [1981] ZR 44, 111
H and Another v Scherring Chemicals Ltd. And Another [ 1983] All ER 839
Augustine Kakembwa v. D. Maibolwa and Attorney General [ 1981] ZR 127

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Methods of Proving Private Documents

1. Production of documents that speak or prove themselves. i.e. documents that require no
evidence to prove what they are or their origins. E.g. production of a written contract
where the contract between the parties is the issue.
2. Strict proof. i.e. calling the maker or author to identify the document or a witness to its
being made or executed, or where the author or witness to its being made/ executed
cannot be found, by calling a handwriting expert.
3. Admission or agreement as to the documents by the parties through their pleadings or in
default of pleadings, in criminal case, through confessions.
4. By court orders. i.e. where the court has discretionary powers to issue orders e.g. under
ss.6,7,8 of the Evidence (Bankers Books) Act. Cap.44

Unit Summary

In this Unit you have learnt about presenting material evidence in court.

Activity 3.0

What happens in a case where material evidence presented in court

was obtained through force or surveillance by the police?

29
UNIT FOUR: PRESUMPTIONS AND JUDICIAL NOTICE

Introduction

These are rules of substantive law rather than rules of evidence. Essence is capacity to do or not
to do an act. Some are rebuttable and others irrebuttable.

Learning Outcomes

After completing this Unit, a student should be able to:

 Describe Judicial Notice

 Demonstrate presumptions.
 Demonstrate objections and motions in court.

These are two additional methods of proof i.e. under certain circumstances; counsel can establish
facts otherwise than by evidence.

Judicial Notice

The trail court can, at the invitation of counsel, and sometimes must, take judicial notice of
certain matters that are so notorious. Lord Denning: “Facts that are so notorious such as the
difference between night and day.” Matters that can be taken judicial notice of include (a) the
law; (b) procedure; (c) statutes; (d) diplomatic or other privileges; (e) matters of the Constitution;
(f) political and administrative matters; (g) customs/customary law (power to appoint assessors –
Chibesakunda Chieftainship case, customary marriage issues); (h) other matters of common
knowledge ranging from the course of nature to the Highway Code and which side of the road
cars drive in Zambia, c.f. DRC.

30
Presumptions
These are also an alternative method of proof where they apply. It is worth noting that the law
provides for some presumptions, whereas others are provided by practice. Presumptions
provided for by law are generally irrebuttable, unless otherwise provided, whereas presumptions
of practice are rebuttable. There is a wide range of circumstances that give rise to presumptions
of both types. These include:

1. Presumption of innocence- until proven guilty in a court of law – from the Constitution- the
highest form of presumption
2. Presumption of sanity
3. Presumption of lawful marriage – upon proof of co-habitation
4. Presumption of legitimacy – upon proof of marriage of parents
5. Presumption of death – under proof of absence for 7 years.

Statutory Presumptions e.g. in the Penal Code and CPC

S. 200 of the Penal Code relates to the offence of murder and you need “malice aforethought”.
Malice aforethought deemed (i.e. presumed) to be present if one or more of four (4) facts set out
in section 204 of the Penal Code are proved.

Also forgery in s. 342 of the Penal Code – there must be an intention “to defraud or deceive”.
Intent to deceive is presumed to be present if facts in s. 344A can be proved and intent to defraud
is presumed to be present if facts in 345 can be proved.
Also Corrupt Practices Act- offences in s. 29 and presumptions of corrupt intentions set out in s.
46. Also Corrupt Practices Act – offences in s. 29 and presumptions of corrupt intentions set out
in s. 46.

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Conventional Business Documents and Computer Generated (Unconventional) Business
Documents .
An area of production of documentary evidence that must be mentioned is the distinction
between conventional business records and computer generated records. An increase number of
cases require this latter type of evidence. As discussed above, all documentary must generally be
authenticated in order to qualify for admission as evidence in a court of law. Proof of
authentication is a necessary foundation for admission. In practice, authenticating an ordinary
business record is a relatively simple matter, though often and easily mishandled. An
examination of decided cases on this type of evidence shows that proof of proper custody is
sufficient authentication for such records and thus a sufficient foundation for its admission as
evidence. It is thus sufficient for a witness to be made to show, through questions and his
answers to them during examination in chief, that:
(a) He/she was privy to the business in question;
(b) He/she is familiar with the business’s filing system for such documents;
(c) The record shown to the court was taken from the correct file; and
(d) The witness recognizes and identifies the intended exhibit as the record that was taken from
the correct file.
Computer generated (unconventional) business records on the other hand require a more
complex foundation in order to prove that they are authentic. This if so for a number of reasons:
(a) The process of storing, processing and generating data/documents by computer is beyond the
understanding of most people.
____________________________________
Consider a computer as a very expensive and intelligent pencil that can be used by many people
for both legal and illegal purposes.
(b) Unlike ordinary records that can be physically stored in files, cabinets, etc. computer
generated records are not so filed and there is no difference between the original printout of
the document and copies made subsequently. Thus there is no distinction between primary
and secondary computer generated evidence and between copies and duplicates. There is no
way of telling which document came first from the printer unless the document itself is
programmed through the computer to tell you e.g. through a “footer”.

32
(c) This type of evidence is relatively new and has developed subsequent to the time when the
main principles of the law of evidence were propounded.
There are two methods of proof of this type of evidence. The first and easiest is through judicial
notice (but a proper foundation for this has to be made). This is so simply because computers and
computer related devices are so widely used and accepted such that the proposer of such
evidence will not normally need to establish the validity of the machine’s underlying theory and
the reliability of the actual machine or instrument used. This approach is widely used in
developing jurisdictions such as Zambia because of the simplicity of the method of proof. There
has been a reluctance and a laxity in these jurisdictions in applying the full authentication
requirement to computer generated records. Instead both the courts and the bar have been content
with proof of mere custody of both the computer and the computer generated evidence and proof
that the business, firm or individual has successfully used a computer system to generate such
records that now are offered as evidence.

In more complex litigation, the first method of proof becomes completely inadequate. For this
reason it is essential that both the courts and the bar follow and apply the developments in this
area of documentary evidence from the more advanced Commonwealth jurisdictions. A study of
cases in those jurisdictions shows that this type of evidence requires much more extensive proofs
before it qualifies for admission as evidence. The proposer of computer-generated evidence is
required to lay the necessary foundation to authenticate the evidence by, inter alia, the following:

(a) Proof that the particular computer used is reliable;

(b) Proof that the data or information input procedures are dependable;
(c) Proof that proper procedures were followed in order to obtain the read out or print out (e.g.
passwords and/or other access protocols).
______________________________________

Note: evidence involving machines e.g. tape recordings. There are two basic foundations to lay
i.e. that the underlying process of generating the tape or document is valid and correct and
second that the actual machine used to produce the tape or document is reliable. If you are
counsel questioning such machine-generated evidence, attack these two foundations i.e. the

33
process used and the machine used. Bomb scarce case in 1990s: many tapes used to produce one
tape with the suspects voice on it. Did not bring the actual machine used to tape and edit the
tapes to court to prove its reliability nor did not establish the validity of the actual process used to
do the taping/editing. Evidence was not admitted.
(d) Proof that the read out or print out before the court has distinctive features of recognition
either in format or content (e.g. font, style, company “headers and footers”, signatures,
initials etc.)
(e) If the read out or print out cannot be interpreted by a lay person or the court due to some
symbols or terminology, then the proposer must call an expert witness in the area concerned
to explain to the court the meaning of the symbols/terminology before the document can be
offered and accepted into evidence.
The purpose of these rules is to eliminate the possibility of admitting faked evidence. One
demand of justice in both criminal and civil procedure is that any possibility of admitting and
relying on fabricated evidence or evidence that has been grossly interfered with by a party
intending to rely on it is eliminated.

Objections and Motions

Objections and motions always accompany evidence. There are two main types under both
criminal and civil law regimes. The first are pre-trial objections and motions and the second are
objections and motions made during trial. [Post trial motions (but not objections) are permissible
if they are clearly provided for by law]. The most common one a Motion to Arrest Judgment,
whether under the CPC/Archibald (criminal) or under the Supreme Court Rules (civil).

Pre-trial motions must always be accompanied by an affidavit while motions made during trial
are made orally (viva voce) i.e. counsel rises to make his objections and then his motion
indicating what he wants to be done. Pre-trial objections however, do not usually require an
affidavit but are usually contained in a Notice of Intention to Object that, in civil cases, is usually
incorporated in the bundles of documents as they are being prepared and indicate that a party will
object to the admission of a document at trial. Objections can also be made to the court and to the
other side and can be made by an Notice to Raise Preliminary Issues. Where an objection is

34
raised through a Notice, it is advisable that the Notice be accompanied by a statement of facts by
way of an affidavit.

The Requirements of an Objection or Motion are as follows:

Each one of them must be:

(a) Reasonable
(b) Specific- stating clearly what is objected to and why and what is asked for
(c) Timely – not too early or too late – this depends on circumstances.
(d) Made with Courtesy to the trial court.

The Practical approach to raising a good objection can therefore be summarized as follows:-
(a) The advocate making the objection addresses (with courtesy) the court i.e. a magistrate (your
Honor or Worship), judge in chambers (Judge) or judge in open court (My Lord/Lady).
(b) The advocate indicates that he is raising an objection that may be on an issue of
procedure/format (e.g. a leading question in examination in chief) or a substantial objection
to the content of the evidence offered into court by the other side (e.g. it is hearsay). The aim
of the objection is to prevent unfair evidence from being heard against your client.
(c) The advocate making the objection specifies clearly what he is objecting to i.e. the particular
words(s), phrases, or questions e.tc. The objection must be specific so that the court is clear
on what it must make a ruling (and the other side must first be allowed to respond to the
objection and so also must be clear what is being objected to).
(d) The maker of the objection must specify the legal grounds(s) for the objection i.e. the
evidentiary doctrine that is being violated by the other side, again so that the court and the
other side know what to respond to.
(e) The maker of the objection specifies the motion that he wants the court to make e.g. to quash
the evidence being tendered before it. The maker is inviting the court to make a very
important interlocutory ruling and it must hear both sides before doing so. An error may well
be the basis of an appeal or mistrial being declared.

35
Exhibits
These are anything that can be shown to the court. For their admissibility they must satisfy the
four standards of relevance, authenticity, competence and custody. Foundation questions are
posed to the witness through whom the exhibit is offered to lay the necessary foundation. Six
steps to produce and admit:
(a) Make the witness say something about the intended exhibit after which it is, as a matter of
courtesy, shown to the other side.
(b) The intended exhibit must be handed to the witness who must sufficiently identify it.
(c) The intended exhibit is then marked e.g. “ID 1”
(d) The advocate must then lay the foundation for its admission as evidence i.e. the intended
exhibit is legally and logically relevant, it is being offered into evidence by a competent
witness who had custody of if and that the exhibit is authentic i.e. it is what it purports to be.
(e) Ask the witness what he wants done with the exhibit i.e. by the witness being asked to read
the relevant parts of the document. [Note: anything published in court that is not so formerly
admitted is illegally published and you cannot stop cross-examination on an intended
exhibit].

Conventional and Computer Generated Evidence – how to prove these;

Objections and Motions (Continued)
Some objections will claim violation of substantive evidentiary doctrines or rules. The four
elements of a good objection are as follows:
 My Lord/Lady/Your Honor …..
 I object
 To any testimony by the proposed witness
 On the ground that this witness is e.g. incompetent to be a witness.
Further Examples
 My Lord/Lady/Your Honor……
 I object
 To the admission of that proposed exhibit
 On the ground that there has been insufficient authentication.
 My Lord/Lady/Your Honor……..

36
 I object
 To that question
 On the ground that it calls for improper opinion evidence
 My Lord/Lady/Your Honor……
 I object

___________________________

Some opinion evidence may be “proper”.

 To that question
 On the ground that it calls for incompetent hearsay evidence

 My Lord/Lady/Your Honor………….
 I object
 To that question
 On the ground that it calls for privileged communication

Other types of objection made during the trail relate to matters of form than substance. E.g.

 My Lord/Lady/Your Honor………….
 I object
 To that question
 On the ground that it is vague and ambiguous

 My Lord/Lady/Your Honor………
 I object
 To that question
 On the ground that it is leading the witness

 My Lord/Lady/Your Honor …………

 I object
 To that question
 On the ground that it is a compound question.

 My Lord/Lady/Your Honor…….

37
  I object
 To that question
 On the ground that it has already been asked and answered

 My Lord/Lady/Your Honor………..
 I object to that question
 On the ground that it is argumentative

 My Lord/Lady/Your Honor………
 I object
 To that question
 On the ground that it assumes facts not in evidence

After the objection has been made there will be a debate/argument and the judge will make a
ruling on the objection i.e. either allow it or not. It is good practice if the other party believes that
the objection is justifiable to say e.g. “I will rephrase my question” i.e. do not press a bad point.
Note: you can ask “objectionable” questions e.g. leading questions and if the other party is asleep
you may get away with them – this is part of the art of advocacy.

The same elements apply mutatis mutandis, to motions. i.e. The maker:
____________________
Many questions in one – not sure which one witness is answering.
(a) Addresses the court
(b) Indicates that he is moving a motion or application
(c) Specifies what he is moving to strike
(d) Specifies

If the motion is granted (after arguments) the maker requests the court to make a specific order to
cure the defect if possible or quash/disregard as appropriate. Note: with an objection there is a
ruling; with a motion there is an order.

38
Unit Summary
In this unit you have learnt about ;
(i) Presenting a matter of Law in court.
(ii) How to address the court.
(iii) The Advocate’s demeanor in the court.

Reading:
(i) Devil’s advocate
(ii) Court Process in Zambia.

39
Activity 4.0
Revision
Evidence – its nature (anything that tends to prove or disapprove a fact in issue) and categories of
evidence. Know how to apply the rules of evidence to the 5 main categories and their sub-
categories.
(a) Direct evidence – perception – the strongest form of evidence – but perceptions vary.
(b) Indirect/Circumstantial evidence- stricter rules for admissibility – strong and compelling –
only one logical conclusion can be drawn from it.
(c) Best Evidence- rule now only applies to documents- originals must be used but if only
secondary evidence is available you must lay the necessary foundation for its admission.
(d) Documentary Evidence – Public, Private and Business Records – Methods of proof – for
private documents strict proof (call author, witnesses, expert, someone who knows the
handwriting etc), admitted by statute e.g. bank records, court order, admittance by parties,
document speaks for itself. Document defined in s.2 of the Evidence Act.
(e) Hearsay- generally inadmissible – but not a strict rule there are exceptions that have
evolved by way of practice over many years e.g. dying declarations, expert opinion,
informed lay opinion (e.g. a person saw a man entering a bar and allowed to testify that in
his opinion the man was drunk an hour later, also a lay person may confuse what he sees
e.g. an AK47 and a SHE but may still be allowed to give an opinion about what he
believes from what he saw), res gestate (statement must be contemporaneous and
spontaneous with no time for thought to fabricate it), declarations of pedigree, and
exemptions that arise by statute and public documents e.g. Title Deeds are conclusive
proof of ownership.

40
UNIT FIVE: RELEVANCE, OPINION EVIDENCE AND HEARSAY
Introduction
It is the admissibility, qualified to give opinion or exceptions to general rule.
Learning Outcomes
After completing this Unit, you should be able to:
 Describe Relevance
 Demonstrate opinion evidence
 Understand hearsay evidence

The first rule of evidence is called the relevance rule. This rule states that only matters that are
relevant to the case may be proved by evidence. In this connection, the first practical step in any
attempt to present evidence before a court is for counsel to determine the exact parameters of the
case and the issues that it raises. The facts in issue are always relevant. Facts that are regarded as
relevant to the facts in issue, i.e. facts that are collateral to the facts in issue can be relevant and
may be proved by evidence in appropriate cases. Generally, facts that an ordinary person may
consider relevant are often not legally admissible in evidence as they are regarded as being
unduly prejudicial to the accused in criminal cases or they unnecessarily widen the scope of the
case in civil actions. Collateral facts are actions, omissions, statements or declarations that
accompany the facts in issue to explain them. These collateral facts are admissible in evidence as
forming part of the events (res gestae). It does not matter if these collateral facts, statements or
declarations were authored by the witnesses themselves or by other persons. One test to be
applied (others are that the evidence must be logically and legally relevant) to such collateral
evidence is that such actions, omissions, statements or declarations must be substantially current
with the facts in issue so that there is no time to allow fabrication of evidence to occur i.e. the
issue of comtemporaneity and spontaneity.
A typical example is a dying declaration made when the person is laboring under the compelling
pressure of fatal injury or a hopeless expectation of death. This type of hearsay evidence is
admissible as an exception against the hearsay rule, the common law principle being that dying
people never cheat or lie.

41
Opinion Evidence: Strictly speaking, opinion falls under the category of hearsay evidence and in
some cases circumstantial evidence for the simple reason that the opinion makers conceive them
_______________________

The people v John Nguni [1977]

after the event has been perceived by bothers with their own senses. E.g. evidence of an
investigating officer who tells the court after examining the evidence of others “I made up my
mind …….” i.e. I formed an opinion. Whatever an investigating offer does is “post facto”. When
cross-examining such an officer, a skilled advocate will test his opinion i.e. test the grounds upon
which the officer formed the opinion to bring the charge. Other opinion evidence and
conclusions drawn by other witnesses are on their own inadmissible and will fail as evidence and
the case will flop if such evidence is not supported by some other category of evidence.

Expert opinion evidence ) Types of Opinion evidence:

Lay opinion evidence ) All may be admissible as exceptions in
Informed opinion evidence ) appropriate circumstances, BUT there must
Formal opinion evidence ) be supporting evidence or corroboration

Generally the common law has doubts about the trustworthiness of opinions. There are historical
reasons for this position. For these reasons the common law prefers that witnesses restrict their
testimony to observed facts or date perceived by one or more of the witness’s 5 senses. The
courts will then draw inferences or conclusions from the given facts or data. These inferences
drawn by the court may agree or disagree with the witness’s opinion ( but the court must use
judicial reasoning in drawing its own inferences and conclusions).

The prohibition against the admissible of opinion evidence is, like that of hearsay evidence, a
general not an absolute rule. There are a number of situations where the law permits various
types of opinions as evidence.

E.g. 1: A lay witness as opposed to an expert witness, may express an opinion on a subject if that
witness is not able to verbalize all the perceived data and communicate it to the court. i.e. he sees

42
or hears something but cannot fully explain what he saw or heard, he may be allowed to express
an opinion (e.g. he may not be able to say that the car/was travelling at a precise speed but can
express the opinion that it was too fast). Indeed it is usual for an ordinary witness to fail to
articulate all the perceptions that led him to make a conclusion and it is in such situations that the
common law allows
________________________
Opinion Evidence can conflict e.g. two doctors may conclude that death was by different causes.
Mulenga Case: Mrs. Mulenga dressed as a registered nurse & obtained entry o husband’s
mistress’s house from maid. Gave injection to mistress’s baby who died. Drove off and dumped
nurse’s uniform in pit latrine. Fireman broke pit latrine and retrieved uniform. Fireman was
called to testify but (nonsensical) objection was made that he was not an “expert” Phiri
(prosecuting) was not calling him as an expert witness but as a witness. Nevertheless, objection
upheld and evidence was excluded.

a lay witness to voice an opinion that will be admitted in court as evidence. [Note: assessors give
their opinions].

E.g. 2: The trial court itself often lacks the knowledge or skill to draw the proper inference from
the information or data given in evidence if the subject matter is technical or scientific. In such
situations the law allows the admission of the opinion of experts in the technical/scientific field
in issue. This is expert opinion evidence. Where there are two or more conflicting expert
opinions, the court is not bound by either of them and there are a number of options available.
The court may:
(a) Choose one opinion and reject the other
(b) Call for additional expert opinion evidence
© Reject both conflicting opinions and arrive at its own opinion and decide the matter in issue as
a question of fact.
The advocate must lay a proper foundation for the expert opinion evidence in order to persuade
the court. E.g. What do you do? How long have you done this job? Where did you train? What
qualifications have you got in this field? Do you have any international experience? Have you

43
any publications in this field e.t.c. If you make insufficient foundation, you may loose your case
because the other expert is better founded by counsel for the other side.

Formal Opinion Evidence E.g. police officers make conclusions arising out of their
investigations/interviews. These are opinions. In such criminal cases, such opinions while
admitted as evidence must be tested as the police can and do very easily manufacture evidence
and the freedom of the individual is at stake and the standard of proof is higher. Cross-
examination of such formal opinion evidence is very important. Note: Whatever should have
been done but has not been done by the investigating officers (e.g. visiting the crime scene,
taking fingerprints e.t.c), will be interpreted by the court in favor of the accused. There is a lot of
advocacy work required when dealing with opinion evidence.

Unit Summary
In this unit you have learnt about;
(i) Opinion Evidence
(ii) Relevance of Evidence
(iii) Under what situations is Hearsay admitted in court.

Activity 5.0
Who is qualified to give opinion evidence. Illustrate your answer by citing Zambian authorities.

Readings:
(i) RV. Mumenga H.C (NR) 1954
(ii) United States V. Goodlow U.S. court of Appeals eighth circuit (1974)
(iii) Kapwepwe V.R. (H.C) N.R.[1952]

44
UNIT SIX:

EXAMINATION OF WITNESSES
Introduction

This unit is all about the examination of previous consistent statements from witnesses.

Learning Outcomes

After completing this Unit, a student should be able to:

 Demonstrate how to prepare a witness for giving testimony in court.

 Explain the events of the case in simple language.
 Understand competence of witness.

Examining Witnesses

This is the only way or medium through which you will get evidence on the record.

[A] Laying the foundation for Evidence: The most important procedural rule of evidence is that
the proposer of any evidence must present a sufficient foundation before offering the evidence
e.g. the advocate proposing a letter into evidence must present proof, through questions and
answers, of its authenticity, relevance to the matters in issue and it having been in the custody of
a competent witness, before it is offered into evidence. Similarly an advocate intending to rely on
a written statement or document (or even an unwritten statement), must present proof of who
made it, where it was made, when it was made, to whom it was made, how it can be recognized
or identified, and in whose custody it was last seen by the witness. In criminal trails, if the
document or statement is incriminating or contains an admission, the lawyer must further present
proof that it was made freely and voluntarily without force, coercion, promise or reward. These
kind of proofs are part of the “foundation” for the admission of that evidence. Thus such
evidentiary foundation is a condition precedent to the admission of evidence in a court of law.
Failure to present a foundation or leading insufficient foundation will often lead to successful
objections and the exclusion of vital evidence and the eventual loss of the case and indeed

45
wasted time and resources. Failure to present sufficient evidentiary foundation is actually an
admission of incompetence on the part of the advocate.

There are three important practical rules of evidence that the advocate must observe as he drafts
each line of questions to the witness, these being simplicity, brevity and proper case preparation.
Lack of these three present treats to the witness’s evidence.

(a) Simplicity: a lawyer must always use the simplest most easily understood terms as the
lawyer’s duty at all times is to communicate effectively with his witnesses, most of
whom will be coming to court for their first time. Effective communication requires the
lawyer to use simple language without use of the normal court room jargon e.g. don’t say
“leave” when you can use “permission”. Similarly use “before” rather than ‘prior”,
“after” rather than “subsequent”, “argument” or “disagreement” rather than “altercation”.
Note: a lawyer may be communicating to his witness through an interpreter. It is
important to realize that examination of your own witness is a test of how well you can
get the best evidence out of them, rather than the use of the best vocabulary. Reserve
jargon for your submissions to the court.
(b) Brevity: each question to your own witness should be made as short as possible. The
longer the question, the lower the level of understanding by the witness. Experience has
shown that it is much more difficult for a listener to absorb a spoken sentence than it is
for a reader to absorb a written sentence. This is because in a spoken sentence, there is an
absence of visual recognition that is an added advantage. Besides, a long and winding
question also makes it difficult for the court to follow counsel’s line of argument or
questions or the direction of his examination.
(c) Pre-Trail Preparation: It is a cardinal practical rule of evidence that each advocate must
make efforts to prepare evidentiary foundation before trial. If the advocate often misfires
in his questioning or pauses too long in his Examination in Chief, the examination looses
its flow and rhythm. If the witness is made by the advocate to look uncertain in his
answers, there is a danger that the court may develop disinterest or distrust in the
witness’s memory. The court has the duty to take into consideration the demeanor of
witnesses and such opinion of demeanor is not appealable to a superior court. The SCZ

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decides on the record and not on witnesses. The advocate should thus not spoil the
demeanor of his witnesses. It is therefore essential to review the intended testimony with
each witness before trial. The witness should be made to read or study his pre-trial
statement if any or read documents that he authored or received in order to refresh that
witness’s memory and pay attention to detail. During this exercise the advocate should
never coach the witness into saying what that advocate wants to be said. The witness
should be as truthful as possible to the perceived facts in accordance with the oath or
affirmation taken just before testifying. Advocates should also avoid last minute
preparation because if you do so you are very likely to have unpleasant surprises from the
witnesses during Examination in Chief.
_______________________________
The trial court will record the demeanor and take it into account when making its
Judgment.

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Competence of a Witness

The question of competence is a question of fact. One of the most important rules of evidence is
that every witness must be competent to testify as a witness in a court of law. It is a common law
requirement that a prospective witness must be made to exhibit proof of his or her competence to
testify by showing that he or she has the following abilities:

(a) Ability (and opportunity) to observe

(b) Ability to remember
(c) Ability to recognize a duty to tell the truth
(d) Ability to relate or narrate.
To demonstrate these abilities in a witness is every advocate’s goal in Examination in Chief. In
cross-examination, the aim is to show that one or more of these abilities is lacking. If a witness
does lack one or more of these then that witness is incompetent to be a witness. Insane persons or
mentally unstable persons are always caught up under this rule. Similarly children of tender age
on account that they have not fully developed their abilities. Because of this, children are prone
to misinterpret and exaggerate. [Juvenile Act gives guidelines on how a juvenile’s evidence is to
be received – corroboration. But a child of tender age is not defined anywhere. Decided cases
show a variety of ages from 5 upwards of children who have given evidence not under oath. It is
a question of fact in each particular case as it is with mentally unstable persons.

In certain cases, even when a prospective witness is competent in the sense that he or she possess
the 4 abilities, the law renders them either as suspect witnesses or incompetent as witnesses in a
particular case. The categories of such persons include:
(a) Co-accused persons
(b) Accomplices
(c) Spouses and former spouses where one spouse is accused. E.g. a wife is not a competent
and compellable witness against her husband unless the wife herself or her children are
victims of her husband’s crime or where the spouse is in a forced common law marriage.

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Suspect witnesses – competent, but the court will attach low weight unless it is corroborated by
some independent witness or supported by some other independent evidence.

Incompetent witnesses – are not allowed to testify in the first place.

Evidence of a co-accused or an accomplice is voluntary. However, this type of evidence is
always suspect and in some cases requires corroboration or supporting evidence of an
independent nature from some other independent source. This is so because these types of
possible witnesses are persons with a possible interest of their own to serve.

In addition, there are two types of person who are vital to the criminal justice system but may not
necessarily be witnesses. These are (a) the informer and (b) the whistleblower. The two are
distinct. The informer will rarely come to court and if he does (e.g. in State Security cases), he
will come under an assumed name given by the DPP e.g. Mr. Sugar, Mr. Spoon, and Mr. Fork
and the informer’s real identity is kept secret. If you are defending and you revel the informer’s
real name, the consequences are grave. You can be charged under State Security laws and sent to
prison for a minimum of 25 years. One of the highest responsibilities of an advocate is to protect
an informer’s identity. The court is obliged by law not to force the prosecution to reveal its
sources or informers identity. The court is obliged by law not to force the prosecution to reveal
its sources or informers. An informer usually has nothing to do with the court. The police simply
say “ I have received information…” but do not have to say where they got this information. A
whistleblower is one who is an insider e.g. an employee, board member who comes to know
things because of his inside knowledge. A bill being prepared for a whistleblower law for
Zambia. They need different protection from what an informer requires.

If a co-accused or accomplice is to be turned into a full witness, the prosecution must obtain a
pardon that is in the form of a contract between that co-accused and the DPP. A pardon wipes
out the crime and is a common law practice. The co-accused ceases to be a suspect and his
testimony then has full impact. Defence counsel is not allowed to cross-examine on the pardon.
It is a contract with conditions e.g. that the co-accused will provide very valuable information of
more serious crimes done by bigger fish.

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Spouses
The accuser’s wife or spouse is not a compellable witness for the prosecution in cases of:
- Treason
- Ill Treatment or inhuman conduct by a spouse
- Assault Cases which are extremely serious
- Committing unnatural offences i.e. Sodomy
- Husband leaving on immoral earnings of the wife.

SUMMARY OF THE UNIT

You have learnt that examination of a witness is a necessary process by questioning a party that
gives a testimony or calls a witness to do so in support of his case. In examination in-chief no
leading questions. However, it is permissible to ask such questions where evidence is not
disputed or leave has been given to treat a witness as hostile.

ACTIVITY
Discuss under which circumstances will the preliminary depositions be admitted in evidence in
the High Court. Cite relevant authorities.

READ: HAONGA V. The people S.C.Z (1976)

(i) Manila & Mwapuki V. The people. S.C.Z 1980

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UNIT SEVEN
BURDEN AND STANDARDS OF PROOF

Introduction
It appears it is like a single integral one borne by one party, and yet it consists of two inter-
related but distinguishable responsibilities. One of these responsibilities or burdens obliges the
party who deserves the court to give judgment as to any legal right or liability dependent upon
existence of facts which he asserts to produce evidence sufficient to persuade the Trier of the fact
that the existence or non-existence of particular facts in issue is established to the requisite
standard of proof. This obligation necessarily involves the adducing of evidence in an attempt to
prove a fact. The ultimate burden, or if there is only one issue the legal burden seems to
correspond to the obligation to convince the tribunal at the end of the case.
Learning Outcome
After completing this unit you should be able to:-
(i) Explain the meaning of a standard of proof.
(ii) Understand the two differences between civil and criminal burdens.

THE PROOF OF ISSUES

The burden of proof of the facts in issue is imposed by law with consequences which will be
apparent when the shifting and discharge of the burden are considered. The obligation of proving
the facts in issue results from the principle that who asserts a matter must prove it but who denies
it need not disprove it (i.e. Qui affirmat non a ei Quinegat probatio). This principle or Maximu
applies equally to civil and criminal proceedings.

It is of paramount importance to take into account that in an adversarial legal system the party on
whom lies the burden of proof of the issues has the right to begin, that is to say, his Advocate
(Lawyer) makes the opening speech or motion and adduces evidence first. In civil cases this
party is the plaintiff. And in criminal cases it is the prosecutor Thus:-

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 (1) Civil Cases
Indirectly the burden of proof depends on the substantive law governing the claim, for that law
prescribes the essential allegations of the parties, Thus it is the substantive law which requires
the plaintiff in an action for Malicious prosecution to allege an unsuccessful prosecutions to
allege an unsuccessful prosecution instigated by the defendant, absence of reasonable and
probable cause, malice and damage.

More directly, the burden is determined by any relevant presumption and the pleadings or their
equivalent. So in an action on a check, the plaintiff is relieved of the burden of alleging and
proving consideration by a statutory presumption, though he must allege other facts showing the
liability of the Defendant such as his drawing of the cheque. The pleadings show whether any
allegation is admitted or denied. In other words, what are the facts in issue and which party
asserts them. In all civil cases if the assertion of a negative is an essential part of the plaintiff’s
case, the proof of the assertion still rests upon the plaintiff. The terms negative and affirmative
are after all relative and not absolute. In dealing with a question of negligence that term may be
considered either negative or affirmative according to the definition adopted in measuring the
duty which is neglected. Wherever a person asserts affirmatively as part of his case that ascertain
state of facts is presented or is absent, or that a particular thing is insufficient for a particular
purpose, that is an averment which he is bound to prove positively.

It has been said that an exception exists in those cases where the facts lie peculiarly within the
knowledge of the opposite party. This was strongly illustrated in the case of Joseph Constantine
Steamship Line Ltd V. Imperial Smelting Corporation Ltd (H.L) England 1941. In this case the
Defendant did not establish affirmatively that the supervening event was not due to his default.
Also Read KACHASU V. Attorney General [1967] ZR 145 – the burden was on the applicant to
show that the requirement is not reasonable.

IN CRIMINAL CASES
Every person who is charged with criminal offence shall be presumed to be innocent until he is
proved or has pleaded guilty see Article 20 (2) of the Republican Constitution Chapter 1. The
burden on prosecution was reaffirmed in 1935 by the House of Lords in Woolmington V.

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Director of Public Prosecution [1935] A.C 4.6.2 H.L. Lord Sankey L.C. put it more clearly, and
it has remained throughout the past 100 years classic, that “Throughout the web of the English
Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to
prove the prisoner’s guilt, subject to the defence of insanity and subject also to any statutory
exception. If at the end of and or the whole of the case, there is a reasonable doubt, created by
the evidence given by either the prosecution or the prisoner, as to whether the prisoner, killed the
deceased with a malicious intention, the prosecution has not made out the case and the prisoner
is entitled to an acquittal. No matter what the charger or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law of England and no
attempt to whittle it down can be entertained”.
If there is evidence of provocation, even though it is not relied on by the accused, the judge
should put the matter to the jury or prosecution. Subject to this requirement, the burden on the
prosecution to negative a defence does not arise unless the defence is raised and adequately
supported by evidence, whether derived from cross-examination of a witness or witnesses for the
prosecution or given by or on behalf of the accused. This rule applies to provocation, accident
and other defences. Please read the following.

(i) Chankau V. R [1955] A.C. at P. 206-211

(ii) Bratty V. Att. General for Northern Ireland [1963] A.C. 368 H.L

However, it should be noted that in some cases the burden may lie upon the Defence. They
include the following:-
1. INSANITY
When insanity is raised by Defence, the facts constituting the alleged crime are not usually
disputed, though they require formal proof. But the advisers of the Accused seek to show that
he was insane at the time of the crime. A burden of proof is then imposed by law on the
accused , which involves his making out a prima facie case at least. Refer Wilmington’s case
V. DPP [1935] A.C. 462. This is so partly because the defence probably involves an issue, as
distinct from a denial of some fact alleged by the prosecution; and partly because there is a
presumption of sanity of the Accused which operates in favor of Prosecution unless it is
rebutted. Read: McNaughton’s Case [1834] 10 C I.

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2. STATUTORY DEFENCE ON A CHARGE OF MURDER
When the defence asserts some fact which is actually or theoretically inconsistent with
Malice, such as accident or provocation, there is burden on the accused to adduce some
evidence. This applies even to cases of some automatism.
3. NEGATIVE AVERMENT
When the burden of proving a negative averment lies on prosecution, as when the
prosecution asserts that an accused person is not qualified or authorized or licensed, on
general principle some evidence in support of the assertion should be given as otherwise the
accused would have to prove his innocence.
Read: MWELWA V. The People (GCZ) 1975 ZR 166
4. Some Acts cast the onus of proof of particular defenses upon the accused. In addition to the
defence of diminished responsibility mentioned above, another example is to be found in the
case of JUSTIFICATION as defence to a charge of libel; while other statutes provide that
when prosecution has proved certain facts, the accused shall be deemed to have committed
the alleged offence or one of the components, unless the contrary has to be proved.
5. When the defence raises a special place in bar, such as “outrefois” acquit or the liability of
another party to repair a highway, the onus of proving the special plea is upon the defence.
Read:
(i) Archibold (any)
(ii) R.V Spurge (C.C.A) 1961
(iii) LUNGU V. The People (SCZ) 1977
(iv) R.V Edward’s (C.A) Euploint 1975

PROOF OF OTHER ALLEGATIONS

1. PARTS OF ISSUES
A fact in issue maybe composed of a number of other facts, or may be deducible from other
relevant facts. The burden of proof of the former facts is the same as the burden of proof of
relevant facts also lies on the party seeking to prove the facts in issue.
2. DENIALS AND EXPLANATIONS
It will be seen that it may be necessary for the opposite party to deny or explain the case against
him. Proof of facts in denial or explanation does not necessarily constitute an issue.

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3. ADMISSIBILITY OF FACTS
The onus of proving such facts lies upon the party who asserts that the other fact is
admissible. Thus to prepare the ground for admissibility of a declaration by a deceased
person, it is necessary to show the death of the declarant and other conditions of
admissibility; to prove a confession of crime, it is first necessary to show that it was made
voluntarily.
To adduce secondary evidence of private documents, it is usually necessary to account for
the absence of the original. To exclude extrinsic evidence of a transaction, it may be
necessary to show that the transaction was reduced to writing. If there is doubt as to the
competence of a witness, the party calling the witness may be obliged to prove his
competence.
When the opposite party contests the admissibility of a fact or the competence of a witness,
after prima facie proof thereof or the operation of a presumption to that effect, the burden of
proving facts to the contrary should fall upon that party. So some burden of showing facts
casting doubt on the voluntary nature of a confession, which has been proved prima facie to
be voluntary, probably lies upon the accused. And the burden of proving that an original
document was unstamped to displace the presumption of stamping, lies upon the party
objecting to the admission of Secondary evidence. But if there is satisfactory evidence that
the instrument was unstamped at a particular time, the presumption is displaced and the
Party who relies on the instrument must prove it to have been duly stamped. This is an
illustration of shifting burden in all civil litigations.

DISCHARGE OF THE BURDEN

It simply means that the party starting must make out a primal facie case. That is to say that
the plaintiff, Complainant, Petitioner or Prosecutor has a duty imposed by law to adduce
evidence which if challenged by a submission of no case to answer, will be held sufficient to
allow the case to proceed; and if ultimately accepted will prove the facts in issue which he
has to prove.
The burden on the plaintiff maybe lightened by a presumption in his favour. If he can prove
facts from which a presumption arises, usually he is relieved of the need to establish further
facts. Read the case of MWELWA V. The people (SCZ) [1975] Z.R. 166.

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 DEFENDANT OR ACCUSED
When the plaintiff has adduced all his evidence, in an attempt to discharge the burden of
proof of the issues which lies upon him, a burden may shift to the Defence. The position of
the defendant, respondent or accused person depends on the nature of his case. An
illustration is found in the case of KATUNDU V. THE PEOPLE (H.C.Z) [1967]. In this
case the appellant was convicted of rape. On his appeal against sentence, the High court
examined question of the burden of proof in cases of intoxicated offenders. It was stated by
the court that where there is evidence of intoxication, whether it is raised as a defence or
not, it is the duty of the court to examine and evaluate that evidence. If having done so the
court is satisfied beyond reasonable doubt that the accused was not intoxicated then that is
an end of the defence of intoxication.
However, if the court is not so satisfied then it must go further and consider whether it is
satisfied, again to the standard of satisfaction beyond reasonable doubt, of two
NEGATIVES.
1. That the accused was not s affected by intoxication that he did not know what he was
doing or that he did not know it was wrong to do it. Look at section 14 (Z) CAP 87
Penal Code.
2. That the accused was not affected by intoxication that he was incapable of forming any
intention necessary to commit the offence- sec 14 (4) CAP 87.
3. If the court is so satisfied of both these negatives, then the defence of intoxication fails.
If the court is not so satisfied then the DEFENCE succeeds.

INDEPENDENT DEFENCE
When the defence does not dispute the case for the plaintiff, but raises an independent issue, the
burden of proving that issue, which is imposed by law, lies on the defendant. In Civil
proceedings it may also arise when a set-off is pleaded. A counter claim, involves a separate
cause of action-which must be proved by the Defendant. There may be an independent defence
to civil proceedings when the defendant denies the case against him and in the alternative asserts
that, even though that case maybe proved, he can show facts which relieve him of all or partial
liability. This in an action for libel the defendant may deny some essential part of the plaintiff’s
case, such as INNUENDO, and plead in the alternative justification, privilege or fair comment.

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In an action for negligence the Defendant may deny negligence but alternatively plead the
plaintiff E-contributory negligence. The burden of proving a defence or ground of reduction of
liability, as the case may involve an issue that is imposed by law, and lies on the defendant.
Read: SALUWEMAN V. THE PEOPLE (C.A.Z) 1965 Appeal case.

UNIT SUMMARY
In this unit you have learnt about STANDARDS of proof in the following:-
1. Civil actions when the defendant does not appear in court to contest civil proceedings a
the hearing, the onus on the plaintiff in light. He is required to adduce the minimum of
evidence necessary to prove his claim. In contested actions that party succeeds whose
evidence establishes a preponderance of probability, or balance of probabilities in his
favor. One party may succeed on some issues and the opposite party on other issues.
Read:
(i) BLYTH V. BLYTH (H.L) 1966
(ii) DAVIS V. DAVIS (C.A) 1950

2. CRIMINAL CASES
On trials for crime the standard of proof required of the prosecutions is
(i) higher than that of a party in a civil action.
(ii) Higher than that required of the accused.

ACTIVITY
Discuss the conclusive evidence of
(a) Statutory in nature
(b) Or estoppels

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UNIT FIVE
OATH AND AFFIRMATION
Introduction
Generally the rule of evidence is that all oral evidence must be given by persons who have sworn
an oath to speak the truth and nothing but the truth.
Initially, the promissory oath was according to either Christian or other faith used designed to
insure veracity on the part of a witness. At sometime in the history of mankind Christian faith
Oath was unable to bind non-Christian Witnesses. During medieval Europe the number of
foreigners who were regarded to be infidels was very small. And so the philosophy of Christian
oath taking was practically –applied. However, the increase in commerce more non-Christian
businessmen appeared in courts in settling cases as witnesses.

Learning Outcomes
After completing this Unit, you should be able to:
(i) Take an oath or affirmation in court.
(ii) Demonstrate swearing on oath.
(iii) Understand what it means to tell the whole truth.
(iv) Describe veracity of a witness and committing perjury after witness has sworn to be
factual.
1. The frequent appearance of foreigners in English courts in mid-seventeenth Century brought
in a compromise between Religion-faith and the commercial pocket. It was not with some
faiths which had historical-bible linkages and who believed in some God, some Triune
Godhead, as Christians. It was discovered that all could be sworn as witnesses on the Old
Testament. By mid-eighteenth Century the modern judges repudiated the old narrow notions
and by the out of a case of Omychund V. Barker (1974), Ark Z1 of Calcutta-Bangladesh, it
was held that believers in God, who rewards those do well and avenges those who do ill,
were competent witnesses, NOTWITHSTANDING that they did not profess the Christian
faith. Hence witnesses were sworn according to any form of oath which bound their
conscience.

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2. MODERN LAW ON OATHS
In modern times the law allows every person having authority to hear evidence is
empowered to administer an oath to witnesses. Read English Evidence Act of 1851 section
16. Today, and in practice the oath is usually administered by a clerk of the court or any
delegated junior officer or Associated.
However, before a witness gives evidence on oath it is necessary to ascertain whether the
witness is a believer or not. In cases of Christians witnesses administration consists of
telling the witness to hold the New Testament in uplifted right hand and read or repeat the
words of the oath. And these are “I SWEAR BYH ALMIGHTY GOD that the evidence
which I shall give shall be the truth, the whole truth and nothing but the truth”.
However, there are many versions to the above standard Oath minus or plus words from one
area of planet to the other. However, whichever form is used, it is no longer necessary for
the witness to add such words as “so help me God” or kiss the Bible or any Holy book.
Muslims have been sworn on the Koran and Hindus and Parsees on the text books assumed
to be scared to them. The Japanese and Chinese have been sworn in a form binding their
conscience. The fact that the oath does not have religions belief it does not affect the
validity for perjury. In the absence of a symbol of faith or a ritual, the witness may affirm.
READ SAKALA V. The people (CAZ) 1972.

THE AFFIRMATION
There are three (3) categories of a substitute to the Oath discussed above.
First, there are persons whose religious tenets forbid the swearing of judicial Oaths. For this
reason members of the Old English Society of Friend, or Quakers, were permitted to affirm
in civil cases by 1695 and in criminal cases by 1753 Refer to RV. BRIDGES [1753] say, 72.
Secondly, there were persons and still are, who have no religions belief, pagans or earthiest.
Witnesses who could not take oath were treated as incompetent witnesses up to 1869. When
affirmation was accepted as one form of swearing to give testimony.
Thirdly, there are persons who cannot be sworn owing to practical difficulties. By an Act of
1888 every person who objects to be sworn on the grounds either that he has no religion
belief or that the taking of an oath is contrary to his religious belief may affirm instead of
taking an Oath. He is entitled to do so.

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 The form of Affirmation prescribed as “I CHENDX, do solemnly, sincerely, and truly
declare and affirm”. Affirmation is not permitted when a witness states that he has a
religious belief which does not prohibit the taking oaths, in which case he should be sworn.
Nor is affirmation permissible when a witness declines to state the form of oath binding on
him, in which case he is apparently incompetent to give evidence.
It must be stated that unjustifiable refusal to swear or affirm constitutes CONTEMPT OF
COURT.

UNSWORN STATEMENTS
Generally unsworn statements do not have or carry weight. They are less cogent than
statements made on oath and subject to cross-examination. The principle exceptions to the
general rule include the following:-
(i) Judges and Counsels speaking as to former trials
(ii) Persons only producing documents Read PERRY V. GIBSON(1834) I.A.S.E. 48
(iii) Young children in criminal proceedings.
Read:
(i) ZULU V. The people (SCZ) 1973
(ii) SAKALA V. The people (CAZ) 1972
(iii) CHEWE V. The people (SCZ) 1974
(iv) ACCUSED PERSONS where the unsworn statement is not evidential but mere
commentary only sworn statement will be contracted by the Judicial Tribunal.

PERJURY
Perjury is an offence which is committed by all persons sworn to give evidence on oath or
affirmation. The offence was created by a statute and supersedes the common law. The Perjury
ACT of 1911 in Britain, provided that a person shall not be liable to be convicted of any offence
against this ACT or any offence declared by any other ACT to be Perjury or subordination of
perjury, solely upon the evidence of one witness as to the FALSITY of any statement alleged to
be false. Giving false statement in contradiction of earlier statement in the process of misleading
the tribunal and course of Justice, affect the quality of evidence given. Perjury is necessary in the
administration of Justice without it witnesses would be giving false statements against those in

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defence. The rule ensures that only honest testimony is tendered in evidence. And it is a rule
which punishes all the persons who are likely to intimidate prospective or actual witnesses.
Accused persons who interferes with the witnesses are punished by the rule of Perjury.
Read the case of: Re Decte V. Crompton 1952 CL.D)
Where the widow did not prove that her deceased husband died before 23rd June 1919 and that
the husband had disappeared over a long period in circumstances in which she would be entitled
to presume that he was dead at the time of Marriage. Evidence given by widow was false.

SUMMARY OF THE UNIT

In this Unit you learnt the following:-
(i) The definition of an Oath and Affirmation
(ii) The value of having sworn evidence
(iii) The essence of sworn evidence in contradiction to UNSWORN EVIDENCE
(iv) The end result of giving false testimony.

ACTIVITY
When the unsworn evidence of a child of tender years is adduced by the prosecution against any
person for an offence, the Accused shall not be convicted unless the rule or philosophy of oath is
followed. Discuss citing Zambian Authorities.

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UNIT SIX
PRESUMPTIONS
Introduction
These are the rules of Law and Practice, the latter is largely depended upon general
considerations of probability in civil cases and heavy burden of proof on prosecution in all
criminal cases, typical of Adversarial legal system –British in nature. The law demands that a
fact shall be proved only in a particular way; no alternative evidence on the point usually has any
cogency which includes the credibility of witnesses, the reliability of documents, the inferences
to be drawn from things and the effect of the evidence as to facts in issue generally.
After completing this Unit, you should be able to:
(i) Define Presumptions
(ii) Describe the two types of presumptions
(iii) Relate theory to case Law for presumptions.

TYPES OF PRESUMPTIONS
These are two types which are IRREBUTABLE PRESUMPTIONS which are conclusive in
nature and REBUTABLE which can be challenged by facts or law of evidence.

1. IRREBUTABLE PRESUMPTIONS
These are the rules of substantive Law rather than rules of evidence. No evidence is admitted
to rebut them except proof that the basic facts underlying and giving rise to the presumptions
are not true. Presumptions are stated by the statue to be conclusive in nature. For example a
male person under the age of 12 years is protected by the DOCTRINE OF INCAPAX which
has given the presumption that he cannot perform sexual intercourse. He is, by Law at
section 14(3) of the penal code CAP 87, incapable of having carnal knowledge of a woman
or girl. This in itself is a statutory way of stating that such a child cannot be found guilty of
the offence of RAPE.
However, Parliamentary drafts men sometimes use conclusive of evidence which is not
conclusive. For example a statute provides that a certificate signed by a treasure of a local
authority shall be conclusive evidence of non-payment, unless it is proved that he sum
certified to be due has been paid since the date of the certificate. The certificate is thus

62
 conclusive evidence of non-payment only up to the date of certificate and evidence of
subsequent payment makes the certificate inclusive.
2. Presumptions of fact, are not truly presumptions being in essence circumstantial evidence.
However, their effect is that proof of a particular fact permits a court to enforce some other
facts if it so wishes. This is based on the proposition that common sense and experience
show that a particular fact usually goes hand in hand with other fact. For example there was
a presumption of continuity or continuance when certain factual situation is proved to have
existed at a particular moment, then that state of events maybe presumed to have continued
for a reasonable time thereafter. This was amply illustrated in the case of Attorney General
V. BRADLAUGH [1885] 14 QBD 667, in order to prove the accused lack of religious
belief. Evidence was given in proceedings four years earlier in which the accused had
declared his lack of belief. It was held in the House of Lords that the earlier state of belief
was strong evidence of his later state of mind. It was further stated that if the evidence had
related to events 20 years earlier, no interference could have been drawn.
3. REBUTABLE PRESUMPTIONS OF LAW
The effect of a rebuttable Presumption of fact is that the court may reach a presumed
conclusion of facts, but it is obliged to do so. Read RV.BAGVSLEY LICENSING
JUSITICES [1959]2 Q.B. 276 at 276 at 281 B.C. also D.C. [1960] 2 Q.B. 167 C.A, as to the
conclusive presumption in relation to Matrimonial Home. If the presumption is slight, the
court may give it little or no weight. For example, the possession long after the theft of
stolen property of a common place type such as a lead pencil may raise a very weak
presumption that the possessor received it knowing it to be stolen property. But possession
may raise no such presumption at all, because a part from any difficulty in identifying the
pencil as the thing actually stolen. However, such an object may have passed through a
dozen innocent hands between the time of the theft and the charge.
If the presumption is strong it may be as effective as a rebuttable presumption of Law. So
the possession soon after the theft of any stolen article will raise the presumption that the
possessor is a thief or a receiver of property believed having been stolen. Even if the
presumption may be strong, however, it may be displaced by evidence to the contrary. The
burden will shift from prosecution to accused who will merely give an explanation of his
possession. It should be noted that if there is any explanation to be made by an accused,

63
whether by a sworn or unsworn statement in court, the agency or credibility or reliability, of
evidence leading to the presumption and of the explanation to the contrary depends solely
on probability. The accused explanation may be preposterous or contract an excuse he had
previously given, in which case the court will disbelieve him, and the presumption will
prevail or the explanation may be convincing or sufficient to raise a reasonable doubt, and in
this case, rebut the presumption. The presumption of innocence is one of Law, but is often
rebutted by presumption of fact such as arising from possession of property believed to have
been stolen or received.
Similarly, when the validity of marriage is in question there may be a rebuttal of the
innocence by the presumption of continuance of life. When an irrebuttable presumption, the
former has precedence because it is a rule of Law. Therefore, under our penal code Chapter
87 of the Laws of Zambia, thus, the presumption of innocence of a child under eight (8)
years of age, who is found in possession of property believed having recently been stolen
will strongly prevail over the presumption that he is the thief or receiver. Another example
is that in the absence of any evidence to the contrary, a person who has not been heard of for
seven years by those who would be likely to have heard him (The particular facts) will be
presumed dead (Presumption of fact) Read CHARD V. CHARD application for nullifying
of first marriage was granted because the first wife went missing or not seen by those who
knew her from 1917 up to 1933. And presumption of Death for missing persons is seven
years unless countered by presumed facts to the contrary. Thus if the opponent establishes a
prima-facie case to disprove the presumed fact, the presumption disappears and the case is
determined on the evidence before the court without reference to the presumption. Other
presumptions of the statutory law are as follows:
1. That “every person is presumed to be innocent until he is proved guilty”. Zambian
Constitution, Article 20 (2) O L. And that every person is presumed to be of sound
mind, at anytime which comes into question, until the contrary is proved”. Section
11 CAP 87, penal codes states. Read the following cases for more illustrations;
(i) Watkins V. Prudential C.D (1934) P.A 497 (US)
(ii) PIERS V. PIERS (H.L) 1849
(iii) Repeete (deceased) Pete. V. Crompton [1952] C.D.
(iv) On Legitimacy, FRANCIS V. FRANCIS (1959) probate

64
 (v) Ettenfield V. Ettenfield [1940] C.A.
In conclusion, the presumptions of law arise as follows:
(i) They are either of procedural expedient or
(ii) A rule of proof of production based upon the comparative availability of material
evidence to the respective parties.
(iii) A conclusion based upon generally known results of wide human experience or
(iv) A combination of (i) and (iii) stated above.
For example the presumption as to survivorship of husband and wife meeting death in a common
disaster is procedural expedient. This is because it is not based upon extensive data arising from
experience. An unexplained absence for seven years raises the presumption of the death of the
absentee upon expiration of the last day of the period. This also is procedural expedient, which
appears arbitrary but necessary rule for the solution of problems arising from unexplained
absences of human beings. An example of a conclusion firmly based upon generally known
results of wide human experiences:
(a) An envelope properly addressed and stamped will reach the addressee if the latter is
alive.
(b) A child born during the wedlock of its parents is legitimate
(c) A person who drives across a railroad cross will show due care. If the driver is killed at
such a crossing, the presumption of the victims due care is merely the converse of the
statement that the burden of proof rests on the asserter of the victims negligence.
A presumption that a debt is paid after a lapse of a definite long period of time is both procedural
expedient and a conclusion based on the results of wide human experience.

SUMMARY OF THE UNIT

After learning this unit you will be able to:-
 Irrebuttable presumptions are some facts made conclusive evidence of other facts by the
statute.
 That rebuttable presumptions are laws which require that a fact shall be proved only in a
particular way, and no alternative evidence on the point usually has any cogency credible or
reliable.

65
ACTIVITY
CHABWANGU PHIRI was walking along Cairo road when he was injured by bricks falling
from a building owned by Mulenga. CHABWANGU PHIRI wishes to claim damages for
negligence from Mulenga but apart from the fact that the bricks fell from a building, he
cannot produce any other evidence to support his claim. Advise as to the relevant
presumption and burden of proof in this case.

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 UNIT SEVEN
EXPERT EVIDENCE
Introduction
Expert evidence is relevant and admissible upon matters strictly science and technology and
art. Science and Art include almost any matter, material or process which is the subject of
special knowledge or study. Expert evidence has been received on accountancy, analysis of
food, ballistics, banking, the education value of an art collection, engineering-technology,
fingerprints, fish, fires, foreign Law, forestry, military practice, Postmarks, shipping,
surveys and Trade terms, and also expert opinion could be admitted either to establish or
negative the defence of publication for the public good on the ground that it is in the interest
of science, technology, literature, art or learning, or of other objects of general concern.
LEARNING OUTCOMES
After learning this unit you will be able to:-
 Understand the expert witness
 Understand the expert evidence
 Demonstrate when expert evidence is admissible in court.
 Describe the competence of the expert.
 Demonstrate the limits of expert opinion.
 Understand the effect of expert evidence.

EXPERT WITNESS
Generally, the evidence of expert witness is treated as an exception to general that the court will
never admit opinion evidence on its face value without restrictions. Expert evidence is not
relevant and is certainly not admissible when the court is competent to decide the matter in
dispute without assistance. An illustration was made in the Zambian case of BLAKE V. THE
PEOPLE (H.C.Z) 1973 where it was held that evidence in cases of drunkenness may justify
conviction without evidence resulting from a Medical Examination and without blood or alcohol
ratio present in the body of the driver, although obviously such additional evidence can swing the
balance in an otherwise shaky or doubtful cases.

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It is imperative and legal requirement that an expert evidence must be given by a person who is
petites, he must be skilled and posses adequate knowledge achieved by necessary experience in
the trade, technology or art as he claims to be an expert.
Read the case of R.V. SILVERLOCK Q.B. [1894], which held that for the person who draws
attention to the points resemblance to be a professional expert or a person whose ordinary
business leads him to have special experience in questions of handwriting, or whether the
evidence of any person who has or states he has, for some years studied handwriting- would be
admissible for that purpose.
Furthermore in the case of CHUBA V. THE PEOPLE (SCZ) 1976 it was clearly, stated an expert
evidence is an opinion only which point out the similarities and draw conclusions from them.
And expert evidence is one matter on which the court has to make a finding. The expert witness
should place before the court all the scientific materials used by him in arriving at his opinion so
that the court may weight their relative significance. The expert evidence is there to provide the
court with the necessary scientific technological or artistic criteria for testing his accuracy so as
to enable the court to form its independence judgment. That is by applying these criteria to the
facts proved in evidence.

COMPETENCE OF THE EXPERT

The decision whether a witness is qualified to give evidence of opinion as an expert is made by
the court. Therefore a witness tendered as an expert not to be an expert or specialist in
professional sense. Therefore, even a general Medical practitioner may give an opinion as to the
eyesight problems or earache, though he is not, an ear, nose and throat consultant. In R.V.
SILVERLOCK [1894] L.Q. B 766 , it was held that a solicitor might give expert evidence of
handwriting, his qualification being some years study of the subject partly for professional or
partly for private purposes.
If the witness is allowed to give evidence as an expert, the scope of his knowledge will be the
subject of cross-examination. The extent of his skill or experience will naturally affect the
weight, the credibility, cogency or quality of his evidence, especially when there is no
recognized standard of qualification. It is important to take note that like any other witness he
may be subjected to cross-examination as to test his bias.

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LIMITS OF EXPERT OPINION
There are some limitations in addition to the restrictions on the subject matter of expert evidence.
The following are the major restrictions.
1. GROUNDS OF OPINION
In all cases the grounds upon which an opinion is based maybe challenged. These grounds
involve both the facts and the rationale. There are cases when the relevant facts are probably
within the sole knowledge of experts, as when one of them speaks to the value of the item in
question. In most cases, the facts are ascertainable. They may have been brought into being
for the purpose of founding an opinion, as when the experiments are carried out to ascertain
the marks made on a bullet the rifling of a firearm, similarities in handwriting or how a
building was set on fire. More usually the expert is confined to the facts giving rise to the
case, whether admitted or proved and indeed any comparable facts. In the case of NWUME
V. THE PEOPLE (SCZ) 1980, the court heard that there were dissimilarities in the
handwriting and that a benefit of doubt was given to the appellant because it was impossible
to say beyond reasonable doubt that both specimens were written by the same hand. Equally
in the case of MEDICALE EVIDENCE noted in LUPUPA V. THE PEOPLE (SCZ) 1977,
the expert opinion on the state of the mind of the accused at the time of committing the
murder case knew what he was doing and that he was exercising both reason and will set
aside and appeal was allowed. For more illustrations Read the following cases;
(i) RHUMALO V. THE PEOLPLE (SCZ) 1981 Ballistic Evidence.
(ii) CHANSA V. THE PEOPLE (SCZ) 1975 Ballistic Evidence- the stated here that
expert evidence is merely there to assist the court in coming to its conclusion.
Furthermore the reasoning of the expert may be supported or controverted not only by reference
to comparable facts but also by reference to other opinions. So expert evidence is only to confirm
what the court would not admit without qualification.
2. OPINIONS ON FACTS IN ISSUE
An expert is usually no more entitled than any other witness to give his opinion of fact in
issue, even though the issue involves both fact and Law. Just as an ordinary witness will not
pronounce that a party was negligent. So on allegation of negligence against a medical
practitioner other members of his profession may not be asked whether the evidence shows
negligence though they may express an opinion as to whether the treatment was orthodox.

69
Similarly an expert in handwriting should or could not assign handwriting to a particular
person, but merely point out similarities between specimens and leave to the court to draw its
own conclusion.
When an issue involves both fact and art or science, and if the facts are proved by witnesses
other than the expert, e.g. in the case of BLAKE V. THE PEOPLE (SCZ), an expression of
opinion by him may be objection able on the ground that it presupposes the truth of the
evidence of fact, hence questions should be hypothetical, specifically showing that one or
more of the facts is or are merely assumed to be true.

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 UNIT EIGHT
CONFESSIONS
Introduction
A confession is an admission made by a person charged with R.V. Robinson [1917] L.K.B.
108 C.C.A for lucid illustration. In contrast the word admission of some relevant fact to a
crime, whereas the term CONFESSION is mostly confined to a full admission of guilt. An
involuntary confession is an admission induced by a person in authority. An involuntary
confession is mainly concerned with statements made by suspected persons to the Police
officers. The issue of confessions is tied up with the accused right against self incrimination.
The foundation underlying the privilege is the respect the STATE must accord to the dignity
and integrity of its citizens in line with the provisions or Article in the Bill of Rights Part III
of chapter 1 of the laws of Zambia and the principle of INNOCENCE.
LEARNING OUTCOMES
After learning this unit you will be able to;-
 Understand the genus of confessions
 Describe the two types of confessions
 Understand consequential discoveries.
 Understand the rules in admitting confessions by the court, as judicial evidence
 Understand confessions by third parties.
BASIC PRINCIPLES OF CONFESSIONS
Confessions generally are not allowed because they are often not reliable. It is naturally desirable
that the STATE seeking to punish an individual produce evidence against the accused its own
scientifically obtained evidence through the STATE’s own labors, rather than from accused own
mouth. In the case of R.V. KAHYATA [1964] N.R.H.C there were three adduced evidence of
incriminating statements made by the accused which as a result of trial within a trial as a result of
inquiry on void dire, the said three statements were rejected by the court because they were
written statements made by the accused to a Police Officer after arrest and charge and caution.
The statements were taken after three days when the prisoner was taken to his village and a
statement was written by the Police Officer a week later. The court discovered that the accused
person was not given the necessary caution so that it would be his duty or would be of temporal
advantage for him to do so, or it would be of temporal disadvantage for him not to do so, or that

71
such words or acts proceed the incriminating statement, they did not induce the accused to make
it. Pleas read also the following cases for further illustrations:-
(1) R.V. Baldly [1852] Den 430
(2) R.V. Thompson [1893] 2QB 12
(3) IBRAHIM [1914] A.C. 599
(4) SPARKS V. Reginam [1964] 1 ALLER 727.
In the Zambian case of ZONDO V. R. [1964] L.A.Z. the appellants were sentenced to death by
the High Court. The main ground of Appeal was that there had been a breach of the Judges Rules
(of 1912 of the M.O.N by the H M Judges of the King’s Bench Division) in obtaining of
statements from them and accordingly the statements were admitted as having been made freely
and voluntarily by the accused. The confessions were of a fact. The police acted fairly.
However, in the case of Muwowo V. The people [1965] C.A.Z that as the burden is to prove
negative and a negative of wide scope, the burden is initially discharged by adducing evidence
sufficient to show prima facie the statement was made voluntarily, such as it was made after a
caution. The police only and merely depose to an opinion on the question which the court has to
determine. The manner the police took two statements from the accused created a lot of
inconsistencies and the court gave a benefit of doubt to the accused, and especially that trial
within trial revealed that the police used excessive force and overstepped the Judges rules.
FORMAL OR JUDICIAL CONFESSIONS
Confessions may be formal or Judicial when made in court. Informal confessions may be
implied. Express confessions are given out of court, but induced by or made to persons in
authority. In the case of CHINYAMA & OTHERS V. THE PEOPLE [1977] S.C.Z, the
appellants were convicted of murder. It was argued that, inspite of a finding that confessions
made by the appellants were free and voluntary, the trial judge should have exercised his
judicial discretion in favor of the appellants and excluded the statements, if the strict rules of
admissibility would operate unfairly against an accused.
INVOLUNTARY CONFESSIONS
The court will never, generally, admit involuntary confession. A confession is not to be regarded
as having evidential value when it is made involuntarily and such confession is not admissible.
Read JUSTIN CHIMBA V. Attorney General [1972]- the plaintiffs were subjected to the most
horrible inhuman degradation of removing clothing and taken to pictures of their naked bodies,

72
starvation, no water to drink and none to wash or bath their bodies. CHIMBA was one of the first
Cabinet Ministers, but made to suffer at the hands of the police when he formed a Political party
U.P.P with the late Simon Mwansa Kapwepwe. The police brutality was designed to principally
to ascertain the source of the new party’s funds. Use of confessions necessarily implies that
evidence ‘equal or better is not available and that confessions are reliable. The police are
normally dangerously overzealous with burning desire to show the Public that they are being
effective. The police use deceptive strategies, sometimes, such as fake or false legal advice or
tricks or simply cajoling the accused out of exercising his Constitutional Rights.

CONFESSION BY INDUCEMENT
A confession is usually excluded if it was caused by any INDUCEMENT of a secular or
religious nature, relating to the accusation and held out by a person in Authority. The most
common conventional reason for exclusion is that a confession so induced is unlikely to be true
or genuine, and the other equally important reason is one being the Policy of preventing the
abuse of power by the Police. In the case CHIGOWE V. THE PEOPLE S.C.Z[1977] it was
stated that in effect the questioning for a considerable time must be such as to mount to an
inducement. And further illustrated in a case of ZONDO AND OTHERS V.R. L.A.Z [1964] that
once the full scope of the word inducement is recognized, that prolonged police questioning may
amount to an inducement since it may excite the hope in the victim that it will be discontinued if
he makes a statement and the fear in him that it will continue if he does not make a statement.
The inducement must be the cause of the confession, so far as can be ascertained by the judicial
investigation. An obvious case of apparent cause and effect is the offer of a pardon followed by a
confession made in consequence of such an offer is inadmissible . The inducement must be
communicated to the accused person, though communication need not be direct.

Thus a pardon may be offered by handbills available to the public. In the British , old case, of
R.V. THOMPSON [1893] 2Q.B. 12 C.O.R when the accused was suspected of embezzlement,
the chairman of the company employing him told the brother of the accused that it would be the
right thing for the accused to make a clean breast of it. There was no evidence that the remark
was communicated to the accused but later he confessed and paid back part of the money with
his brother’s help. The court above held that the confession was induced by what amounted to a

73
promise of favorable treatment known to the accused. Therefore in the case of THE PEOPLE V.
HAMAINDI [1972] H.C.Z. the accused was charged with Stock Theft. The evidence against him
consisted mainly of a confession alleged by the prosecution, to have been made by him. It was
held that extra-Judicial confessions uncorroborated by any other proof of the Corpus delicate
which are of themselves sufficient to justify conviction of the prisoner has been GRAVELY
DOUBTED by the Courts.

CONSEQUENTIAL DISCOVERIES OF A CONFESSION STATEMENT

There is a very illustrative English case which vividly explains the principle stated hereof. The
rule of evidence states that an inadmissible confession may lead to the discovery of some fact,
such as the hiding place of stolen goods. Evidence of the facts discovered maybe given, read
R.V. WARICKSHALL [1783], LEACH 263 and whereas it shows that the discovery was made
in consequence of information given by the accused. There is authority in the case of R.V
GOULD.
[1840] 9 C & P.364. The accused was charged with burglary. The accused made a confession
statement which included a statement of having thrown a lantern in a particular pond. The
empirical or physical evidence was admitted which was a part of a confession, as well as the
factual finding of the lantern in the pond. The rationale behind the reception of the part of the
statement is that the discovery in confirmation no part of an involuntary confession would be
admissible.

UNIT SUMMARY
After learning this Unit you will be able to:-
 Take note that the police must at all times observe Judges Rules.
 That generally confessions are always excluded because they are strongly suspected to have
been taken under inducement.
 That confessions can lead to consequential discoveries of legally acceptable physical
evidence.
 That the court has legal discretion to admit or not to accept confessions.
 That voluntarily given confessions may be admitted in court but the court must warn itself.
 Confessions made to persons in authority are admissible.

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ACTIVITY
Ng’uni was picked from the scene of Aggravated Robbery after a chase by the police and
subjected to prolonged questioning. Ng’uni gave a detailed Confession implicated other
friends who had managed to run away. In the High Court, Ng’uni stated that he gave
statement under inducement by the police. The Police have no other evidence and they
tendered the only confession available. Discuss, giving plenty authorities to support the
raised principles in your narration.

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UNIT NINE
COMPETENCE OF WITNESSES
Introduction
A person who is fully conversant with some relevant fact, and therefore competent to give
evidence about it from the layman’s point of view, may nevertheless be incompetent as a
witness in Law. An incompetent witness is not allowed to give evidence. A person who is
legally competent cannot always be compelled to give evidence, if he is unwilling to do so.
Competence and Compellability are therefore distinct principles. In most instances a
person who is not a competent witness is also not compellable witness.

LEARNING OUTCOMES
After learning this unit, you will be able to:-
 Understand competence of a witness.
 Describe compellability of a witness
 Understand the credibility of a witness
 Describe case law.

DISTINCTION BETWEEN COMPETENCE AND COMPELLABILITY OF A

WITNESS.
There is a distinction between competence to give evidence in general and competence to
give a particular type of evidence. Whether a witness is competent to give evidence in
general and competence to give a particular type of evidence. Whether a witness is
competent to give expert evidence, for example, is a matter distinct from the general subject
of competence. It has been seen that he question of competence of experts is normally
decided by the court, and the same rule applies to general competence. A witness who is
competent and compellable may nevertheless be entitled to privilege in respect of certain
answers, but such privilege does not affect his obligation to give evidence on other subjects.
Every person is a competent witness except an insane person, a small child unable to
understand between cheating and telling the truth in a matter or by virtue of their office or
occupation. So the universal rule is that anyone is both competent and compellable witness

76
in any proceedings, although in certain cases a witness may refuse to answer questions on
the grounds of privilege or Public Policy.
A competent witness is one who is free from personal characteristics which would disable
him from giving evidence before a court. A competent but maybe lawfully obliged to give
evidence on pain of being incompetent of court.
In line with Article 20(7) of CAP 1, THE Zambian Constitution, says no person who is tried
of a criminal offence is compellable to give evidence at his trail. According to Zambian
criminal procedure code CAP 160 of the laws of Zambia, states clearly that every person
charged with an offence, and the wife or husband as the case may be, of the person so
charged, shall be a competent witness for the defence at every stage of the proceedings,
whether the person so charged solely or jointly with any other person. In the case of
MUMBA V. THE PEOPLE [1984] H.C.Z the appellant was charged with an offence with
corrupt practice by a Public Officer. On appeal the court held that an accused person in a
criminal trial cannot be compelled to give evidence in his defence. Equally in the
SHAMWANA V. THE PEOPLE S.C.Z. (1985) Z.R the appellant and six others were
convicted of treason in the court below, on the evidence of an accomplice whose evidence
was wrongly admitted.

ON SPOUSES
In the case of THE PEOPLE V. MUSHAIKWA H.C.Z [1973] Z.R (Read) the accused was
charged with murder. The prosecution sought a ruling from the court as to whether the
Accused’s wife who was a competent witness for the prosecution without consent from the
spouse. Except incases against the person of the witness and in Treason cases, a spouse is
competent witness but not compellable witness.
However, in the circumstances such as the ones which were found in the case of HOSKY V.
COMMISSIONER OF POLICE FOR THE METROPOLIS [1978] H.L. the court held that
the wife was both competent and compellable witness, because the spouses married two
days before the trial of the appellant. At the time of occurrence of crime of assault, they
were not married.

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CHILDREN
In all cases of children there are restrictions upon the evidence received from Juveniles of
tender age. The law is clear that a child of tender age is not competent witness unless voile
dire is conducted to ascertain the child’s intelligence and that fitness to be sworn on oath.
And that he understands what is meant by telling the truth. In the case of SAKALA V. THE
PEOPLE[1972] L.A.Z an application was allowed because the court below did not carry out
its duty on the face of record that the Juvenile possessed sufficient intelligence to justify the
reception his evidence. There was absence of Voile dire.
However, in the case of CHEWE V. THE PEOPLE [1974] S.C.Z the appellant’s
application was dismissed. According to a section in a relevant statute a child of tender age
is not one aged 13 years (section 122 (1) Juvenile Act). The court presumed that the
procedural matters were correctly carried out, that a child of 13 years was competent and
compellable witness. Read also, the case of ZULU V. THE PEOPLE [1973] S.C.Z were a
retrial was ordered.

OTHER CATEGORIES OF WITNESSES

1. Persons of defective Intellect are only competent to give evidence if only they
understand the duty of telling the truth on oath. Read R.V HILL [1986] 82
2. R.V. DUNNING [1965] C.R.M . L.R. 322
THE DIPLOMATS
Foreign Diplomats enjoy extensive immunity from the jurisdiction of the courts. Read
our local or domesticated DIPLOMATIC IMMUNITIES AND PRIVILEGE ACT of
1965. However, immunity can be waived by the sending state. Foreign Diplomats are
competent but not compellable witnesses in all cases.
3. THE PRESIDENT OF ZAMBIA
During his term or tenure of office of the Republican Presidency, the President enjoys
immunity in both his official and private capacities from criminal proceedings and civil
actions brought against him in his private capacity. Read Article 47 CAP 1 - Republican
Constitution. He is a competent witness but not compellable .

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RELACTANT OR HOSTILE WITNESS TO THE PARTY THAT CALLED HIM/HER
TO TESTIFY.
A witness who is called upon to give evidence in the witness box is by law obliged to answer all
relevant questions which are addressed to her or him, although he/she is excused from
answering certain incriminating questions or on the ground of privilege. The law in criminal
procedure code is very clear and stipulates that whenever any person, appearing either in
obedience to a summons or by virtue of a warrant, or being present in the court room and being
verbally required by the court to give evidence:-
(a) Refuses to be sworn; or
(b) Having been sworn, refuses to answer any question put to him; or
(c) Refuses or neglect to produce any document or thing which he is required to produce; or
(d) Refuses to sign a deposition; without, in any such case, offering sufficient excuse for
such refusal or neglect, the court may adjourn the cases for any period not exceeding
eight days and may, in the mean time, commit such person to prison, unless he sooner
consents to do what is required of him. The court is at liberty to repeat the imprisonment
if the witness still maintains his or her hostile position, from time to time, until such
person consents to do what is required of him/her. Read MUNALULA V. THE PEOPLE
[1982] S..C.Z
IN ALL CIVIL CASES
In civil proceedings the parties are both competent and compellable witnesses. Therefore
a plaintiff can compel the defendant and any other party to testify. Read Common Law-
British ACTS: (1) EVIDENCE ACT of 1851 (2) EVIDENCE AMENDMENT ACT 1835
(3)NDULO’S CHILD AS A WITNESS” 1971/2 Zambia LR 160.
CREDIBILITY OF A WITNESS
The credibility of a witness in Civil litigation is not relevant. The witness supports to
What is being claimed if he is giving testimony in a suit for breach of a repairing covenant in a
lease, for example it will be quite irrelevant whether he is a sinner or a saint, and he will not be
allowed to assert his virtuous character. The issue will probably be whether the defendant has
done the required work, and the credibility of the witness can have no relevance to that issue.
Nor will it usually be relevant for the defence to elicit in cross-examination of the witness that he

79
is a rogue, except in so far as that affects his credit , which is not likely to be material in the case
instanced, or to adduce evidence of the credibility of the witness or his servants or agents. In
most instances evidence of general credibility of a witness is rejected by the courts.
READ HURST V. EVANS [1971] I.K.B. 352 CHARACTER OF WITNESS IN ISSUE
When the character of a witness is in issue evidence of his reputation is admissible. Despite the
fact that the basis of a claim for defamation is injury to the witness’s reputation, in an action for
libel or slander, his character is regarded as relevant to damages but is not necessarily, strictly in
issue. Nevertheless, witnesses do not usually or frequently adduce or give evidence of their good
character which is not always confined to reputation, while the terms of a libel and a plea of
justification may be such that the witness’s credibility is in issue, when evidence of bad character
may be admissible. Thus, not credible character of the witness may be defence to an action for
breach of promise of Marriage, whether brought by a wife or husband and possibly to an action
for procuring such a breach. Read: (1) FOULKES V. SELLWAY (1800) 3 ESP 236 (2) Crofter
Hand Harris Tweedy Ltd V. Vetch [1942] A.C. 435 at 442 H.L
CREDIBILITY AFFECTING DAMAGES
Evidence of a witness’s bad reputation maybe admissible for the defence to reduce the damages
in cases of defamation, when a plea of justification puts in issue the truth of the alleged libel.
Read: Scott V. Sampson [1882] 8 Q.B.D. 491.
When there is no such plea, the above evidence is subject to conditions, and cross-examination
as to matters not mentioned in the libel maybe damages, though evidence is admissible in
mitigation on other grounds. In actions for breach of promise evidence of the witness’s not
credible character may be admissible to reduce damages and the same rule applies to the
petitioner in divorce cases based on adultery. Similarly, in all actions for seduction, or
enticement, the credibility of woman concerned may be relevant to mitigation of damages.
READ THE FOLLOWING CASES FOR LUCID ILLUSTRATIONS
(1) Bradley V. Mort lock [1816] HOLT. N.P 151
(2) BUTTERWORTH V. BUTTERWORTH [1920] P.126 at 145

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SUMMARY OF THE UNIT
After learning this unit you will be to:-
(i) Describe the nature of competence distinct from compellability of witnesses.
(ii) Understand credibility of a witness.
ACTIVITY
CHENDEX was sued by Hamusonde the father of Alineta a five year old girl. Hamusonde
alleged that the dog of CHENDEX inflicted dog bites on the person of his daughter. CHENDEX
said in defence that the injuries should have been occasioned by the twigs of the bush through
whilst trying to run away from a pack of dogs which included CHENDEX’s dog. There was no
other independent person when the incident occurred. At trial the girl Alineta was examined for
competence to testify. There were many questions put to her. She was asked if she understood
what to tell the truth. She was asked, “what will happened if you do not tell the truth”. She
answered that “the man haven will punish me by throwing me in Hell”. Following that Voile
Dire, the court received ALINETA’s evidence in which she said the dog bite me all over the
body. The court fond for her . CHENDEX appealed against the action. Discuss.

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UNIT TEN
CORROBORATION
Introduction
Corroboration means confirmation of a fact existing independently of the other but supportive. It
is evidence which is supporting proof of a matter on which other evidence has been or will be
given. Corroboration is independent evidence which supports the evidence of a witness in a
material particular. The general rule in both criminal and civil law is that the court may act on
the testimony of one witness although there are occasions where the need for corroboration must
be considered by the court. Experience has shown that in certain types of cases or with particular
categories of witnesses it is dangerous to convict in the absence of corroboration. However, if the
witness is trustworthy or the document reliable or the thing demonstrative, such proof may be
more convincing than testimony of many witnesses.
LEARNING OUTCOMES
After Learning this unit you will be able to:-
(i) Identify or define Corroboration
(ii) Demonstrate categories of Corroboration between witnesses or material in particular
(iii) Understand nature of Corroborative evidence through Zambian case law.
(iv) Demonstrate statutory corroboration.
(v) Understand corroborative evidence as a matter of practice.

CORROBORATION is a common law requirement in all convictions where evidence of a fact

is not conclusive or self-confirmatory. In the case of SHAMWANA V. The People [1985] SCZ it
was held that evidence in corroboration must be independent testimony which affects the
accused by connecting or tending to connect him with crime. It may be evidence which
implicates him that is, which conforms in some material particular not only, evidence that the
crime has been committed, but also that the prisoner committed it. This requirement of
independent evidence to support is a requirement which guard against the danger of deliberate
false implication by simply or jointly fabricating a story against accused as it so happened in
SHAMWANA V. The People [1985] Z.R (SCZ).

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IMPLIED CORROBORATION AND STATUTORY REQUIREMENT
With regard to informal admissions of prisoners, it has been shown that various admissions have
been implied from conduct, including silence in the face of an accusation and have been regarded
as corroborating other proof, though failure to give evidence does not have this effect. However,
failure to supply a specimen of blood, breath or urine may support the case for the prosecution in
some traffic offences Chapter 484-Roads and Road Traffic Act, Laws of Zambia uncorroborated
evidence either of a single witness or object will be treated as unreliable e.g. in estimating the
speed of a motor vehicle or level of drunkenness of a driver.

IN PERJURY
Corroboration in all cases of perjury is necessary. In line with Zambian Penal Code CAP 87 of
the laws of Zambia, a person cannot be convicted of committing perjury or of subordination of
perjury solely upon the evidence of one witness as to the falsity of any statement alleged to be
false.
PROCURATION CHAPTER 87 OF THE LAWS OF ZAMBIA
It is strongly stated that for the purposes of procuring girls or women for prostitution, it is a
requirement that no person shall be convicted of any offence upon the evidence of one witness
only, unless such witness be corroborated in some material particular by evidence implicating the
accused.
CHILDREN (JUVENILES ACT CHAPTER 217 OF THE LAWS OF ZAMBIA
Section 122 (1) stipulates that where in any proceedings against any person for any offence or in
any civil proceedings, any child of tender years called as a witness does not in the opinion of the
court, understand the nature of the oath, his evidence may be received though not on Oath, if in
the opinion of the court he is in possession of sufficient intelligence to justify the reception of his
evidence and understands the duty of speaking the truth, and his evidence though not given on
oath but otherwise taken and reduced into writing so as to comply with the requirements of any
law in force for the time being shall be deemed to be a disposition within the meaning of any
law so in force. In the case of MWELWA V. THE PEOPLE [1978] Z.R 277, it was held that
unsworn children cannot as a matter of law corroborate each other. Read also DPP V HESTER
[H.L] 1973. The phrase some other material evidence means evidence other than that of unsworn
children.

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AFFILIATION
In affiliation proceedings, the evidence of the mother as to the putative father requires
Corroboration Read Legitimacy ACT 214 section 15 of the laws of Zambia and further reading
of Bastard Laws Amendment ACT of 1875- ENGLAND Section 4.
CASES WHERE CORROBORATION WARNING IS REQUIRED
Common law commands that Judges as a matter of prudence, should not convict a prisoner or
accused person on the uncorroborated evidence of some witnesses, particularly in the case of
accomplices. As a matter of practice, and not of law, is that in such cases corroboration is usually
required.
ACCOMPLICES are as follows:-
(i) Participants in the crime charged whether as principals of accessories before or after the
fact in felonies or persons committing, procuring or aiding and abetting in case of
misdemeanors.
(ii) Receivers in respect of the thieves from whom they received property believed to have
been stolen, on a trial of the principal offenders for theft.
(iii) Parties to crimes which may be proved as facts similar to the offence charged.

Whether a witness for the Prosecution is accomplice for the Prosecution is an accomplice is a
question of fact. In many instances this question is answered by the witness himself , who admits
participation in the crime or pleads guilty or by his record when he has been convicted. In other
cases the court may rule that there is no evidence that a witness was a participant or if there is
some evidence the court may direct that the witness was an accomplice or not. In short, the court
has an obligation or duty, as trier of fact, warn itself that although it (court) may convict on
evidence of an accomplice, it is dangerous to do so unless it is corroborated. Read the following
cases for illustrations:-
(i) R.V. BASKERVILLE (C.C.A) England,1916
(ii) NDAKALA V. THE PEOPLE [1980] Z.R. 180
(iii) MACHOBANE V. The people (G.C.Z) 1972
(iv) PHIRI V. The People (SCZ) 1978 in this particular case, it was held that the court
below had done a lot of homework, the supreme court had no doubt that the evidence

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of corroboration had passed the test of manifest cogency that the conclusion was
irresistible to any common Law Judge. Also read KAUNDA V. The People [1974]
There must be independent testimony which confirms the evidence of the accomplice
as to a material circumstance of the crime. It is not necessary that the whole of the
evidence of the accomplice as to the crime should be confirmed; In such a case the
evidence of an accomplice would be necessary. The corroboration may be
circumstantial. There must be independent evidence of the identity of the accused in
relation to the crime, it must be evidence which implicates him or her. As an
accomplice is familiar with the details of the offence, he/she may give accurate
evidence on such matters, but for base motives may substitute. When there are more
prisoners than one, to sustain convictions of the others, the corroboration must
implicate them also. Read R.V Jenkins[1845] ICOX C.C. 177 for illustrations.

SPOUSES OF DEFENDANTS
One accomplice cannot corroborate another. Read R.V Nooks [1832] 5 C& P. 326
also R.V Smith [1964] crim. L.R 818 C.C.A. The evidence of both accomplices is
admissible, but is ineffective as corroboration; that is to say, two witnesses for the
prosecution who are accomplices are no better than one. This rule has nothing to do
with corroboration of an accomplice by admission of accused, otherwise proved. If
the wife of an accomplice gives evidence in support of her husband, her evidence
may amount to corroborate but the court should warn itself to treat her evidence with
great care and caution. Read PHRI V. The People S.C.Z [1978] Z.R. In this case the
appellants were convicted of aggravated robbery. It was alleged that the two of them,
both wearing stocking masks, robbed at gun point a Securicor guard of large sums of
money and the sole issue was whether the appellants were proved to have been the
robbers. The only evidence against them was that of two accomplices. It held that the
corroboration was manifest cogent and abundantly sufficient to support the verdict of
guilty. That there was, no motive to implicate an innocent person. Read also
Mushaukwa V. The people Z.R for more illustration in the issue of spouse of accused
is competent witness but not compellable witness against accused in all serious cases.

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WITNESS WITH INTEREST TO SERVE
READ: MUSUPI V. THE PEOPLE (S.C.Z) 1978 for illustrations.
There is of course a distinction between a witness with a purpose of his own to serve
and an accomplice. The accomplice may certainly have such a purpose, but the
converse is not true. A witness with a purpose of his own to serve is not necessarily
an accomplice. But this is an irrelevant distinction. The question in every case is
whether the danger of relying on the evidence of the suspect witness has been
excluded. The same principles must be used or applied to the approach to a witness
with a possible bias such as a relative or an employee. The danger the court should try
to avoid is not of deliberate dishonesty, but of honest mistake by a witness who may
have a purpose of his own to serve-by giving false evidence. Read even
MACHOBANE V. THE PEOPLE. The critical consideration is not whether the
witness does in fact have interest or a purpose of his own to serve, but whether he is a
witness who, because of the category into which he falls or because of the particular
circumstances of the case, but may have a motive to give false evidence. The danger
of false implication is present and must be excluded before a conviction can be held
to be safe. Therefore, one does not hold such witnesses to be accomplices, but one
approaches the evidence of such witnesses in the same way as one approaches that of
accomplices.
CORROBORATION IN SEXUAL OFFENCES.
Some sexual offences require corroboration by statute in Zambia it in the penal code
chapter 87 of the Laws of Zambia. In other cases it is the practice to require
corroboration of the evidence of the prosecution as on charges of rape and related
offences. A warning is necessary even if the sole issue is identity. The rule that there
must be independent testimony implicating the accused also applies to sexual charges.
Read R.V Connor [1962] Crim. L.R 493, C.C.A. Such charges may be made falsely
from a diversity of motives, and the offences are not often alleged to have been
committed in circumstances which allow of independent testimony of the main fact.
And when these allegations are true, however, corroboration may be availed in
physical signs of resistances on the accused or the victim and otherwise.

86
The distressed condition of the victim may be relevant, her complaint alone is not
corroboration. In some cases corroboration is necessary on other ground, as when the
victim is a child, or when she is an accomplice. Therefore, the courts are required to
warn themselves of the dangers of convicting on uncorroborated evidence of the
victim of sexual abuse. There are a number of reasons for this. First, victims are
sometimes motivated by spite, sexual frustrations or unpredictable emotional
responses.
Secondly, an allegation concerning the commits of a sexual offence is easily made but
difficult to defend. Offences such as indecent assault often leave no visible traces. In
rape cases not only the alleged act of sexual intercourse by the accused but also the
question of consent by the victim sometimes depends entirely upon the word of the
victim as against that of the accused. In the case of R.V. SABENZU (C.R. N.R 1946)
the accused was charged with rape but was convicted in the lower court, of defiling a
girl under the age of 16 years. In the High Court on appeal it was stated that there
being no corroboration that it was the accused who had defiled the victim, the
magistrate should have reminded himself of the danger of convicting without it.
There was nothing on record to show that the magistrate did so reminded himself,
and accordingly the conviction was quashed and sentence set aside. Appeal allowed.
Similarly in the case of ZIMBA V. The people SCZ [1980]. The evidence against
appellant was that he alleged to have seized a woman in the bush and to have raped
her, and thereafter, the woman was seen to be crying by an independent witness. The
High court stated that to be seen crying by an independent witness could not amount
to corroboration. That the court below did not warn itself that evidence of distress at
the time of the making of complaint was not enough to amount to corroboration as it
could have been simulated. The appeal was allowed. Conviction was quashed and the
sentence was set aside.
Read for more illustrations, the following cases:-
(1) KATEBE V. THE PEOPLE (SCZ 1975)
(2) CHIKUTA V. THE PEOPLE H.C.A 334-82
(3) MUBAIWA V. THE STATE AD, 170/80
(4) MUPFHDZA V. THE STATE S.C 124/82

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 (5) SHAMWANA V. THE PEOPLE (1985) SCZ
(6) ENOTIADES V. THE PEOPLE HIGH COURT, ZAMBIA 1965.

EVIDENCE OF CHILDREN
When the unsworn evidence of a child of tender years is adduced by the prosecution against any
person for any offence , the accused shall not be convicted unless the evidence is corroborated
by some other material evidence in support thereof implicating him. In the case of CHISHA V.
THE PEOPLE (SCZ 1980), the case against the applicant rested solely upon the evidence of a
boy aged fourteen years. The issue was whether the sworn evidence was to be treated like any
other witness. It was stated that by reason of immaturity of mind of a child whether sworn or
unsworn, falls within the category of what may conveniently be called “suspect witness” whose
evidence must be treated of necessity be treated as suspect. A conviction which is founded on
suspect evidence cannot be regarded as safe and satisfactory unless such evidence is supported to
such an extent as satisfies the truer fact that the danger inherent in placing reliance upon suspect
evidence has been concluded.
Therefore, the sworn evidence of a child is suspect simply for the reason that it is the evidence of
a child, as the child’s mind is yet to mature, additionally, it may be suspect, for instance, where
the aspect of accomplice evidence of evidence in a sexual case arises. Children are possibly more
under the influence of third persons who could be their parents or older peer group persons.
Adults normally think independents with little influence. Children are apt to allow their
immature imaginations to run away with them and invent untrue or false stories. The courts have
observed that young persons or children when relating sexual incident implicating a given man,
the children may be indulging in fantasy.
Please Read the case of DPP V. HESTER [1972] 3 ALLER 1056 for vivid illustration (1972)
H.L also R.V DOSSI [1918] 13 Cr App R 158 And as read with R.V. BASKERVILLE (1916) 2
KB 658 AT 663.
However, sworn children can unsworn child can be corroborated with the adult evidence. Please
Read the case of R.V CAMPBELL [1956] 40 CR App R93

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UNIT SUMMARY
In this Unit you were able to learn:-
(1) The meaning of the concept of CORROBORATION
(2) Corroboration derived from an accomplice or co-defendant
(3) Corroboration of spouses of defendants
(4) Describe the witness with interest to serve
(5) Understand corroboration in sexual offences
(6) The value and cogency of evidence of children

ACTIVITY
CHENDELA was charged with Aggravated Robbery in which a victim CHAGWANDA had
been fatally injured. Mubita, an accomplice, gave evidence which implicated Chendela. This
included evidence of conversations with Chendela in which he said that he intended to use a
short greener gun for over coming resistance to Robbery. Mubita also gave details of the car
which was used to effect the escape from the scene of Aggravated Robbery. The Zambia Police
found Chendela’s fingerprints in the car. Mubita has a long string of previous offences.
Convictions, mainly for bulglaries. There is no other evidence to connect Chendela with
Aggravated Robbery and Murder. The trial Judge in the High Court below state that “ I warn
myself that the evidence of Mubita requires corroboraton but on evidence. I am satisfied that
there is sufficient evidence to corroborate his testimony. Chendela is convicted and appeals in
SCZ. Consider whether he has any grounds of Appeals.

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UNIT ELEVEN
SIMILAR FACTS EVIDENCE
Introduction
It is the comparison of other facts in issue in a particular case brought before a tribunal or court
of Law for judicial investigation. It must apparently involve some characteristics common to the
fact in issue and the other fact described as similar. In speaking of similar facts it is usually mean
the inclusion of both superficial and real similarity. However, in order to decide on admissibility
it is often necessary to distinguish between them.
LEARNING OUTCOMES
After learning this unit you will be able to:
(1) Distinguish between facts in issue and similar facts which other facts.
(2) Identify similar facts which are admissible in Evidence
(3) Under the judicial discretion that courts use in similar facts evidence.
(4) Describe exceptions to the general in all cases of similar facts evidence as illustrated by
cited cases.
THE GENERAL RULE
It has been contended that the general is that the court may admit other evidence of similar facts
if it is relevant and that the court may exclude evidence of similar facts if there is doubt in
accepting it. In the case of MAKIN V. Attorney General for New South Wales [1894] A.C 57 at
65, it was aptly and vividly stated that “it is undoubtedly not competent for the prosecutions to
adduce evidence tending to show that the accused has been guilty of criminal acts other than
those covered by the indictment; for the purpose of leading to the conclusion that the accused is a
person likely from his criminal conduct or character to have committed the offence for which he
is being tried”. This case shows that generally similar facts evidence is inadmissible, though
there are exceptions if the ground of lack of similarity is raised, it is the matter for the court’s
decision, as it involves a point of admissibility and in criminal cases it is the duty of the court to
stop dissimilar facts being introduced.
JUDICIAL DISCRETION
In criminal trials there is a possibility that injustice may be done to the accused by the admission
of relevant evidence which is more prejudicial than fair, and the courts have evolved various
means of attempting to prevent undue prejudice. In relation to similar facts, perhaps the most

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important mode is the exercise of a discretion on the part of the presiding Judge to exclude the
evidence. In the case of D.P.P V. BOARDMAN [H.L 1974], the appellant, a schoolmaster, was
charged with attempting buggery with “S” and incitement to buggery with “H” both being
students at the school. The trial court directed that evidence of S and H was capable of mutually
corroborative on the basis that their evidence possessed an unusual, very unusual feature
common to the tow stories in that the appellant at all times adopted a passive role in the act.
It was stated that evidence is admissible if it is logically probative, that is, if it is logically
relevant to the issue whether the prisoner has committed the act charged. Therefore, the duty of
the court is to try to adjudicate a charge of crime and set the essentials of Justice above the
technical rule, if its strict application would operate unfairly. Whenever such a situation arose
the court may intimate to the prosecution that evidence of similar facts affecting the accused,
though admissible, should not be pressed because its probable effect would be out of proportion
to its true evidential value.
A further means of preventing prejudice is applicable only when evidence of similar facts has
been admitted, then the court, should warn itself not to give it more than its true weight. Read the
case of HARRIS V. DPP [1952] A.C. 694 AT 707 (H.L) though such warning may prove
ineffective and be the basis of successful appeal.
Read R.V Brown [1963] 47 C.A.R 204. Sometimes such evidence of similar facts has been
admitted with a warn, the appellant court may Quash a conviction all the same, because the case
had been given fake or not actual weight or on doubtful evidence, the conviction will be quashed.
Please read case of R.V DOUGHTY [1965] I.W.L.R. 331, C.C.A.
IN CIVIL CASES
Similar facts evidence has been received in civil actions an example is illustrated by a case in
HALES V. KERR [1908] L.K.B 601 AT 605 D.C, when a barber had allowed the plaintiff to be
shaved with an un cleaned razor, and was thereby alleged to have negligently caused him to be
infected with ringworm, evidence was admissible that other persons so shaved in the same
barber’s shop had also contracted that disease. The court held that the evidence went to establish
a dangerous practice carried on in the defendant’s shop. Read case of Adultery HARRIS V
HARRIS [1872] 27 L.t. 428 conversely, same similar facts evidence may apparently afford a
defence for accused person. An illustration was displayed abundantly, on a claim for workmen
compensation by a father of a stable boy, who was killed by a kick of a horse and found dying in

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the stable with a halter in his hand, when evidence was admitted that the boy had previously
teased the horses with a halter. Read case of Joy V. PHILLIPS, WILLS & CO Ltd [1916] I.K.B
849, C.A. So to-date the failure by workmen and workwomen to use safety equipment has
many times been proved in an action for negligence and breach of statutory duty to provide such
equipment, as showing no casual connection between a workman’s injury and any breach of
duty. Please read the case of MCWILLIAMS V. SIR WILLIAM ARROL & CO. Ltd [1962]
I.W.L.R 295 H.L
NEGATING ACCIDENT
In a case of R.V SMITH [1915] C.C.A., the appellant was convicted of murder of Bessie
Monday. Evidence was admitted to show that he murdered two other women at a later date. The
question raised in the high court, was that the court below was wrong in admitting evidence of
the deaths of ALICE BURNHAM and MARGRET LOFTY. The convictions was upheld stating
that the lower court was right in admitting evidence of the facts surrounding the deaths of the
two women.
NEGATING IGNORANCE OR MISTAKE
See and read R.V. FRANCIS [1874] C.C.A. (H.L). The brief facts were that the accused tried to
pawn a ring at several pawnbrokers by representing that it was a diamond ring. He was charged
with obtaining by false pretences. They observed that but though the non-production of the
article may afford ground for observations more or less weighty, according to circumstances, it
only goes to the weight, not to the admissibility of the evidence, and no question as to the weight
the evidence tendered in that court.
NEGATING INNOCENT ASSOCIATION
In R.V. BALL [1910] H.L. The defendants were brother and sister, were charged with having
had carnal knowledge of each other during stated periods in 1910 resulting into the charge of
INCEST. The court observed that there were suggestive of incest. Further evidence showed that
these two persons had previously carnally known each other and had a child in 1908. The court
observed that prosecution had established guilty passion towards each other and that inference of
occupying the same bedroom and some bet was only inference of guilt. That there was no
innocent living as brother and sister. Appeal was dismissed. Please read the following relevant
cases touching on proof of identity where evidence is circumstantial; negating mistaken identity:-

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 (1) THOMPSON V. R [1918] H.L
(2) R.V. STRAFFEN [1952]C.C.A
(3) R.V BARRINGTON [1952] C.C.A
(4) JOHANNSEN [1977] 65 C.R APP R 101
(5) R.V KILBOURNE [1973] in this last case hereof cited it stated that the court must find
very striking peculiarities common to the two stories to justify admission of one to
support the other fact.
Also read the following cases:-
(1) R.V LOVEGROVE [1920] 3K.B 64 C.C.A
(2) R.V. Marsh [1949] C.A.R.185
(3) R.V. PATEL [1951] 35 C.A.R

RULE AGAINST HEARSAY

Hearsay is what another person was heard to say. Generally a witness is not allowed to repeat
such a statement in the witness box. But, on one hand, the rule excluding evidence of hearsay is
not confined to the testimony of witnesses, as it also includes statements as hearsay may possibly
include oral evidence of conduct. On the other hand, the maxim that hearsay is no evidence is far
too wide. For the recitation of another person’s statement is sometimes permissible apart from
the express exceptions to the RULE AGAINST HEARSAY. PHIPSON 6TH EDITION [1921]
218 defined Hearsay as “Oral or written statement made by persons not called by witness to
prove the truth of the matters stated”. Professor Bakes later on defines Hearsay as that “consists
of out of court assertions of persons who are not called as witnesses offered as proof of the truth
of the matters contained therein”. A renown professor Cross has formulated Rule against
HEARSAY as “Express or implied assertions in documents produced to the court when no
witness is testifying are inadmissible as evidence of the truth of that which was asserted.” Read
CROSS AND WILKINS – AN OUTLINE OF LAW OF EVIDENCE 1964 – or later Editions.
The rule requires witnesses to testify only from their personal knowledge. Thus an assertion,
either express or implied, whether made orally in writing or by conduct, other than one made by
a person whilst giving evidence of the facts stated. The rule applies to evidence against accused
as well as in his favor. The following reasons are in support of the RULE AGAINST
HEARSAY. IN MYERS V. DPP [1965] A.C. 1001

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 1. Hearsay statements emanate from persons who are not under the oath nor subject to
cross-examination. Forcing a witness to submit to cross-examination is the greatest legal
engine ever invented for discovery of truth.
2. The rule enables the Trier of fact to observe the demeanor of the witness in giving
evidence, thus aiding in the assessment of credibility.
3. An accused is entitled to confront and challenge his accuser in a face to face encounter in
front of the Trier of fact.
4. There is a danger of inaccuracy through repetition. There is danger of misrepresentation
of facts from one person to another and then to the Trier of the fact.
5. Any relaxation of the Hearsay rule would considerably expand the scope of admissible
evidence. This would increase the length of many trials and add to their complexity for
example by raising collateral issues.
The trier of the fact may also place undue weight on the hearsay evidence, which would probably
prejudice the accused. However, the five points stated above may appear to be valid but there are
certain situations in which strict, adherence to the rule is plainly ridiculous and out of touch of all
the developments in the law of evidence that have occurred. For example statements made by
dying persons, dead persons or deceased deponents in tribunal or Court preliminaries. So there
are exceptions, to the General rule against Hearsay.
THE RULE In the case of Mutambo V. The People [1965] C.A.Z. It was stated by the Trier of
fact that there is no reason why evidence by recipient, or by a third party who was present and
heard the order given, is not admissible as to the facts of the giving and terms of the order when
those facts are relevant to a matter in issue.
In a case of RATTEN V. THE QUEEN [1972] Privy Council that 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. That the evidence in this case relating to the act of telephoning by the
deceased was factual and relevant. Read the following cases:

1. SUBRAMANIAM V. PUBLIC PROSECUTOR [1956] IWLR 965,970

2. AVERSON V. LORD KINNAIRD [1805] 6 East 188, 193
3. MC GREGOR V. STOKES [1952] VLR 347

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 4. JONES V. MET CALFE (1967) D.C. Observed that hearsay of a number plate noted by
the Police without letting the eye witness take note could not be admissible together with
that testimony given by the Police.
5. Read EVIDENCE ACT Chapter 170, Laws of Zambia
(i) Accepts hearsay evidence in criminal proceedings when (i) a document is, or
forms part of, a record relating to any trade or business or profession and
compiled in the course of trade, business or profession from information supplied
directly or indirectly by persons who have, or may reasonably be supposed to
have, personal knowledge of the matters dealt with in the information they supply.
(ii) The person who supplied the information recorded in the statement is dead, or
outside Zambia or unfit by reason of his bodily or mental condition to attend as a
witness, or cannot with reasonable diligence be identified or found, or cannot
reasonably expected (having regard to the time which has elapsed since he
supplied the information and to all circumstances, to have any recollection of the
matters dealt with in the information supplied. This ACT excludes private
documents for the purpose of proving the truth of the facts stated therein.
IN WRIGHT V. DOE DEM TATHAM[1837] Ex.C
The issue was whether John Marsden had sufficient mental capacity to make a valid will. The
defendant offered in evidence certain letters received by Marsden from persons since dead. The
letters were excluded and the court found for the plaintiff.
In Lloyd V. Powell Duffryn Steam Coal CO. H. of L. [1914], it was stated that the testimony of
the witness to the act, i.e. to the deceased speaking the words repeated, and it is the speaking of
the words which is the matter that is put in evidential value. The evidence is therefore not
secondary or hearsay evidence.
EXCEPTIONS TO THE HEARSAY RULE
1. DYING DECLARATIONS
In R.V PERRY [1909] the accused was convicted of murder of a girl who died as a result of
an illegal operation performed upon her.
DECLARATIONS
These are made in extreme situations, when the party is at the point of death, and when every
hope of this world is gone. When every motive to falsehood silenced, and the mind is

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 induced by the most powerful considerations to speak the truth. A situation so solemn and so
awful is considered by the Law as creating an obligation equal to that which is imposed by a
positive oath administered in a court of Law of Justice.
In the case of R.V Mumenga [1964] H.N.R. A statement was admitted as a dying declaration
recorded by the District Commissioner from the deceased whilst he was lying critically and
fatally injured in hospital. The rule is that no one would wish to die with a lie on their lips.

DECLARATION AGAINST INTEREST

The basis for admission is that it is very unlikely that a person would lie concerning his own
interests. There are four requirements for admissibility:-
(1) The declarant must die
(2) The declaration must be against the proprietary or pecuniary interest of that declarant.
(3) Declaration must be of a fact of facts which were immediately cognizable by the
declarant personally.
(4) The declarant must have had no probable motive to falsify the fact declared.

DECLARATIONS AS TO PEDIGREE
Statements to be implied from family conduct or statements of a deceased person, are
admissible as evidence of pedigree if few requirements are fulfilled;-

(1) The declarant is dead

(2) The declarations relate to a question of pedigree i.e. have genealogical purpose
(3) The declarant was of good relation or spouse of a blood relation, of the person whose
pedigree is in issue.
(4) The declaration was made before the dispute in which it is tendered had risen.
READ BUTLER V. MOUNTGARRET [1859] 7 H.L CAS 633

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DECLARATIONS BY TESTATORS AS TO THEIR WILLS
The oral or written statements of a deceased testator made after the execution of his will are
admissible evidence of its contents. The basis for the exception lies in the fact that there is no
reason for the Testator to lie about contents. For illustration Read Bark well V. Bark well [1927]
P.D Also WOODWARD V. GOULSTONE APP CAS 469.

DECLARTION IN THE COURSE OF DUTY

To render admissible an entry made by a person in the course of his duty, it is essential that not
only should it have been made in the due discharge of the business about which the person is
employed, but the duty must be to do the very thing to which the entry relates and then to make a
report or record of it (Read Mills V. Mills [1920] 36 TLR 772. The basis for exception is the
likelihood of dismissal for failure to record or report accurately which enhances the reliability of
the statement. There must be no reason to misrepresent the facts.

DECLARATION IN PUBLIC DOCUMENTS

A public document should have an entry made by an agent which should be an entry of a
transaction effected or done by the person making the entry and it should be made
contemporaneously with the transaction thus effected or done, which, means the entry must be
the last step in a continuous chain of duty, and it was made in the usual course and routine of that
duty. A public document is state property or Government document.
RESGESTAE
This is a spontaneous declarations, exclamations or utterances made immediately after some
exciting occasion by a participant or spectator and asserting the circumstances of that occasion as
it is observed by him. It means the utterances are made under the immediate and uncontrolled
domination of the senses, rather than reason and reflection, and during the brief period when
considerations of self-interest could not have been fully brought to bear, the utterances maybe
taken as expressing the belief of the speaker as to the facts just observed by him. In the case of
The people V. John Nguni [1977] H.C.Z. It was observed that deceased was seen and heard
crying “look what John Nguni has done to me” He had a big wound on the left forearm which
was profusely bleeding. Three factors occurred to a bring a statement within the exception to the
hearsay rule;

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 (i) An occurrence sufficiently starting to produce a spontaneous and unreflecting
statement
(ii) Absence of time to fabricate.
(iii) The statement must relate to the circumstances of the occurrence. Read People V.
Polan [1939] 221112 and 175 at 181.

CHARACTER AND CONVICTIONS

The general rule of exclusion , which is subject to exceptions, applies primarily to the character
of the parties to litigation, for witnesses stand in a more exposed position.
THE CHARACTER OF A PARTY MEANS reputation Read R.V. Row ton [1865] 34L.J M.C
57, C.C.R. Although in a few cases reputation may bear little relation to true character. Evidence
of disposition or actual conduct is theoretically irrelevant to character and even more so are
rumors or suspicions, yet in fact reputation may be founded on such shifting sounds. However,
in practice, when evidence of character is admissible, it is not always possible to confine such
evidence to reputation. If it is related to criminal charges, the propensity or inclination may be
relevant and admissible. And it has been confirmed in the case of STIRLAND V. D.P.P. [1944]
A.C 315 at 325 that character sometimes means a combination of reputation and disposition. In
challenging admissible evidence of reputation actions may be relevant, and when the character of
a party is in issue, proof that he has been convicted of a crime may be allowed – partly no doubt,
because this consequence of conduct is recorded fact which can be readily proved, Read Case of
Goody V. Odhams Press Ltd [1966] Z.W.R 460 at 464 C.A , whereas conduct itself is more
easily disputable.
Hence it is desirable to remember that in different circumstances evidence affecting a party’s
character may relate to reputation, or to character may relate to reputation, or to character in a
wider sense, or to convictions. The character of a witness is certainly not confined to his
reputation. Both his conduct and any convictions recorded against him may be relevant when his
credibility is attached.
Read the following:
(1) Criminal Procedure Code of the Laws of Zambia Sections 157 v vi (b) and (c)

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 (2) Criminal Evidence ACT 1898 (England) Section 275 a,b,c, And Read (1) R.V Butter
Wasser [1947] C.C.A. (2) Jones V. D.P.P [1962] H.L England (3) R.V. Britzmann and
Hall [1983] C.A.
However, character comes in, that is if, upon trial of any person for such subsequent offence,
such person shall give evidence of his own good character, it shall be lawful for the Advocate for
the prosecution , in answer thereto, to give evidence of the convictions of such person for the
previous offence or offences before he is convicted of such or convictions at the same time that it
inquires concerning such subsequent offence.
ILLEGALLY OBTAINED EVIDENCE
CONSEQUENTIAL DISCOVERIES
An inadmissible confession may lead to the discovery of some fact, such as the hiding place of
stolen goods. Evidence of the facts discovered may be given, and it seems, that the discovery
was made in consequence of information given by the accused. Read Case such as R.V.
WARICHSHALL [1783] Ileach 263 also R.V Barker [1941] 2.K.B 381 at 384. There is and old
authority which states that the relevant part of the confessional statement is also admissible. In
the British Case of R.V. GOULD [1840] 9 C & P 364, the accused was charged with bulgarly.
The accused had made inadmissible confession, which included a statement of his having thrown
a lantern into a pond. Evidence was admitted which was part of the confession, as well as of the
finding of the lantern in the Pond.
In the case of Liswaniso V. The People [S.C.Z) (1976). The appellant was alleged to have
corruptly received money as consideration for the release of a car he had impounded. Fellow
Policemen arranged with the owner of the car to give him the money he had asked for. Soon after
the transaction they searched the applicant’s house and found the money. The search warrant the
police used was illegally obtained. The appellant was convicted of corruption and sought leave to
appeal against conviction. Appeal was dismissed.
The theory justifying the reception of part of the statement is that the discovery confirms it, so as
to render the truth of that part probable, even though it was improperly induced or obtained.
Where there has not been a discovery in confirmation, no part of an involuntary confession is
admissible.

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UNIT SUMMARY
In this Unit you were able to:-
(i) Appreciate the various Evidential situations which were described as evidence of facts in
issue which are admissible or inadmissible.
(ii) RULE AGAINST HEARSAY how it comes into existence
(iii)Understand the differences between accepted features and those not accepted.
(iv) Describe the exceptions to RULE AGAINST HEARSAY.
(v) EVIDENCE OF CHARACTER on how it operates and when is it applicable to all
litigants or parties.
(vi) Identify the evidential areas where illegally obtained evidence will be admitted in Court
of Law.
(vii)
How Bad character or credible character will affect credibility of witness or accused .

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ACTIVITY
Hamusonda sought to administer certain interrogatories to MAGADERINE in order to
establish that MAGADERINE’s late husband had created a secret trust in her favor. The
interrogatories were based on communications between MAGADERINE refused to
answer the interrogatories. Hamusonda urged the court to compel MAGADARINE to
answer the interrogatories inquiring about matters which she and her late husband
discussed while he lived. Hamusonda is also seeking the court’s permission to tender a
letter in his possession written by the late husband of MAGADERINE to
MAGADERINE. The letter admits the existence of a secret trust. Discuss the
admissibility of the evidence in question.

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UNIT TWELVE
ACCOMPLICES
Introduction
It is an established Rule of evidence that where it is proposed to call an accomplice for the state,
the practice:-
(i) To omit him from the indictment
(ii) To take his plea of guilty on assignment Read WINDSOR V.R [1885] L.R.I.Q.B 289,
390 or during the trial, if he withdraws his plea of guilty or before calling him either
(iii) To offer no evidence and permit his acquittal Read R.V. Owen [1839] 9 C & P 83 or
(iv) To enter a nolle prosequi Read R.V. FEARGUS O’CONNOR [1843] 4 ST Tr
(NS)935
LEARNING OUTCOMES
After learning this unit you will be able to:-
(1) Understand the practice of allowing accomplice to become prosecuting witness.
(2) The cogency of the accomplice’s testimony against accused. There can never be doubt that at
common law an accomplice who gave evidence for the state in the expectation of getting a
pardon for doing so was a competent witness. The most persuasive authorities in English
Law commands just that. In the old case of R.V RUDD [1775] K.B. the court had to consider
an application for bail made by a woman who had given evidence to the state or king and
who claimed that in consequence she was entitled to as of right. There is a practice, which
only gives a privilege, and that is where accomplices having made a full and fair confession
of the truth, are in consequence thereof admitted evidence for the state and that evidence is
afterwards made use of to convict the other offenders. If they (accused) act fairly and openly
and discover the whole truth, though they are not entitled as of right to a pardon, yet the
usage lenity and the practice of the courts is to stop the prosecution against them and have an
equitable title to be indemnified or to a recommendation for a state prerogative of mercy only
carried out by the Republic President. If the material or psychological inducement is very
powerful, the court may decide to exercise its discretion. However, when doing so the court
must take into consideration all factors including those affecting the public. Always, it is in
the interest of the public that criminals should be brought to Justice. And the more serious the
crimes the greater is the need for justice to be done. In the case of SHAMWANA V. THE

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 PEOPLE [1985] SCZ the reaffirmed and accepted the turning of an accomplice into a state
witness in the interests of the public and Justice, the court below rightly exercised the legal
discretion, and the SCZ commended that exercise of the Judge’s discretion was not only fair
and proper but also impeccable. However, a lot has been on accomplices under the principle
corroboration.

UNIT SUMMARY
After learning this unit you will be able to:-
(i) Understand the general rule of evidence concerning privileges of Accomplices whey
they are turned into witnesses for the state.
(ii) Identify the areas in which accomplices can be indemnified for supporting the state.
(iii) That accomplices are made witness when it is in the interests of Justice and Public
interests.

ACTIVITY
In the utopian or imaginary case of CHANDA WEYAYA V. The people [2015] Z.R. 275, the
prosecution called at, the trial of the appellant, an accomplice against whom proceedings had
been brought, but had not been concluded. Discuss with authorities.

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UNIT THIRTEEN
JUDICIAL NOTICE
Introduction
Judicial NOTICE emerges wherever a fact is so generally known that every ordinary person may
be reasonably presumed to be aware of it, the court notices it, either simplicities if it is at once
satisfied of the fact without more, or after such information or investigation as it considers
reliable and necessary in order to eliminate any reasonable doubt.

LEARNING OUTCOMES OF THIS UNIT

After Learning this you will be able to:-
(1) Understand the use to which Judicial notice is taken.
(2) Describe the scenario under which the Judicial notice becomes applicable.
(3) Appreciate the extent to which Judicial Notice has been admitted in the courts of Law.
(4) Discover whether Judicial is a product of practice or statutory provisions

Judicial notice means the acceptance by a Judicial tribunal of the truth of a fact without proof, on
the ground that it is within the court’s own knowledge. Much time would be wasted if every fact
which was not admitted had to be the subject of evidence which would, in many instances, be
costly and difficult to obtain. However, in the case of MWAPE V. The people SCZ [1979] the
Judge used his personal knowledge that it could not be a notorious fact or knowledge in Zambia
that ZCBC shops were normally guarded that there was no direct evidence to show that the
appellant had agreement to use violence at ZCBC shop. Judicial notice could not be sustained or
admitted by the court. And in the case of HUBERT SANKOMBE V The people SCZ [1977] the
geographical distance between Mindolo and Kalulushi was admitted in evidence to as notorious
fact that one can cover the distance of 15 to 20 KMS in 5 hours to and back. The alibi of the
appellant association to time was rejected as part of defence.
Judicial notice of matters of private knowledge may not be taken by the court. A court is not
entitled to rely on knowledge gained from the evidence in previous or contemporaneous cases,
(as it was observed in the case of R.V DUNMOW JUSTICES [1964] I.W.L.D to 39 D.C), or
from other extraneous sources, except in special proceedings or special circumstances. Inquiries
from the Bench about persons of evanescent fame may merely be a limit that evidence is quired

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as to their identity, for they may be known to the Court but completely unknown outside the
limited Public who are interested in a particular sport or entertainment. The legal foundations of
judicial notice are either the common law or statutes which provide for Judicial notice in
particular circumstances. There are subsidiary sources are the material referred to by the court,
such as Law Reports and copies of ACTS OF Parliament. Other foundations of Notice are
common knowledge or acquired knowledge, for the law permits the courts to refresh themselves
their memory as to the facts which are readily ascertainable. Other sources could be certification,
sometimes oral, of a custom, oral information from a Ministry and Works of reference. In the
great majority of cases, there is no room for doubt as to the finality of the knowledge of the
Court, and in other cases as a matter of policy the knowledge of the court is expressly stated to
be conclusive. Read DUFF Development V. Goddard [1940] I.KB 687 AT 700, 701, C.A
In the case of KANIKI V. JAIRUS [1964] H.C.Z despite the observations of technicalities
surrounding the circumstances of the tradition custom known as AKAMUTWE which relates to
consequences which ensue upon the death of a spouse in LAMBALAND, the tradition was
notoriously noticed by the courts as contrary to National justice and Morality. It is noticed that it
cannot be enforced in a court of Law. In the case of KAPATA V. The People [1984] SCZ, the
appellant caused a Road Traffic Accident in what he disputed to be a Public Road called Hubert
Stanley Drive in Chimwemwe Township in Kitwe. It was observed by the court that Hubert
Stanley was of a General Miller, that is, a notorious matter, a Public Road gazette situated in the
Local authority township of Chimwemwe to which the public had access. In a case of MAINZA
CHONA [1962] RN 344 it was stated that the court has power to look at its records and take
Judicial NOTICE of their contents, even though not formally brought before the court. That
anything white could be noticed judicially including a chicken. Courts will take judicial notice of
scientific facts which have been well established by authoritative scientists and are generally
accepted as irrefutable living scientists.

The Power of the court to take judicial notice may be obligatory or discretionary. Notice as to
domestic Law is obligatory except where it found to be repugnant to natural law, common law
and Justice. The court takes judicial notice of signatures of other Judges of the superior courts on
official documents, all ACTS of parliament and gazette statutory instruments, unless the country
is expressly provided.

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Most cases of Judicial notice of fact occur when the court exercises a Judicial discretion at to
whether he should take notice of a particular matter, sometimes in response to an invitation from
state Advocate to do so. The courts take judicial notice all case laws decided upon by superior
Courts or themselves, the areas of jurisdictions, Court Rules in white books, seals and others
associated with authentication, sovereign and officers of the state, declaration sound proclaims
which are Gazetted or published for all to see. Textbooks, authenticated or written by current
and past intellectuals or experts in particular fields of study or Publication for information of the
Public or Fraternity or section of the Community or professionals. The court can also can take
notice of the depreciation of the Kwacha the local currency on the International Monetary
Exchange, in relation to its value to other major currencies of the Western world e.g. The British
pound and American Dollar.
In the case of FRINGER V. VENEMA [1965] supreme court of Wisconsin, stated that there is a
modern shifting trend from the test of “common knowledge” to “verifiable” certainty”. What it
means is that, if the fact to be noticed is not one of the general knowledge but can be verified to a
certainty by reference to some competent authoritative sources and is to be used an adjudicative
as distinguished from a legislative fact, the court or the party requesting judicial notice should
notify the parties or the adversary as the case may be, so as to afford them an opportunity of
consulting the same sources or producing others. This serves only as appraisal to the court
whether the subject is verifiably certain or whether the issue must be proved and determined as a
fact question.

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ESTOPPEL
Introduction
In NORMAN FRENCH – It is written as “ESTOUPER” –“TO STOP UP”. It is a rule of
evidence or Law that prevents a person from denying the truth of a statement he has made or
from denying facts that he alleged to exist. The denial must have been acted upon (Probably) to
his disadvantage by the person who wishes take advantage of the estoppelor or his position must
have been altered as a result. It is thus a rule of exclusion, making evidence in proof or disproof
of a relevant fact inadmissible.
An ESTOPPEL has been so described because a man’s own act or acceptance stopped or closet
up his mouth to allege or plead the truth; yet it is not necessarily the truth which he is prevented
from establishing. The modern form of this statement is that a party is precluded from denying
the existence of some state of facts which he formerly asserted. Yet there may be an ESTOPPEL
by Judgment involving findings of fact which the unsuccessful party did not asserted but
contested.
To sum up, an ESTOPEL is “when, in consequence of some previous act or statement to which
he is either party or privy, a person is precluded from showing the existence of particular state of
facts”. Read Best’s Test book on evidence. There are several or various aspects of estoppels. The
precise nature of an ESTOPPEL has given rise to different opinions, and the subject is
sometimes omitted from works on evidence, as a matter either principle or convenience.

ESTOPPEL BY CONDUCT (OR IN PALS)

This arises when the party stopped has made a statement or has led the other party to believe in a
certain fact.

ESTOPPEL BY DEED
This prevents a person who has executed a deed from saying that the facts stated in the deed are
not true.
ESTOPPEL BY RECORD [OR PER REM JUDICATAM]
This one prevents a person from reopening questions that are RES JUDICATA (that have been
determined against him in a previous legal proceeding).
There are two other forms of EUITABLE ESTOPPEL which are as follows:

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(i) THE DOCTRINE OF PROMISORY ESTOPPEL
This applies when one party to a contract promises the other (by words or conduct) that
he will to enforce his rights under the contract in whole or in part. Provided that the
other party has acted in reliance on that promise, it will though unsupported by
consideration, bind the person making it. He will not be allowed subsequently to sue on
the contract. When applicable, the Doctrine thus modifies the Common-Law rules
relating to accord and satisfaction.

(ii) DOCTRINE OF PROPRIETARY ESTOPPEL

This doctrine allows or empowers the court not to permit a landowner to deny that
another has acquired rights in his Land when the owner has acquiesced and the other has
incurred expenditure, for example, if CHENDELA, with PHRI’s consent, builds himself
a house on PHIRI’s Land, PHIRI and his successors in title will not be allowed to
dispossess CHENDELA.
The following are some other aspects of ESTOPPEL.

1. AS A RULE OF EVIDENCE
Estoppels may be so regarded for a number of reasons, the most obvious being that it
makes evidence inadmissible. Estoppels has similarity to irrebuttable presumption of Law
and has been so treated, for one of its effects is to prevent the rebuttal of facts alleged by
the other party.
An estoppel has two characteristics of evidence to distinguish it from such a presumption,
which is a rule of substantive Law. An Estoppel may be waived by the party who would
otherwise benefit by it , Read a case of SCARF V. JARDINE [1882] 7 App Cas. 345; and
it only works or operates between the parties to an action.
ESTOPPELS have also been likened to solemn admissions and conclusive evidence.
Distinctions are discernible, for example, a formal admission renders evidence of a
disputed fact, superfluous, whereas estoppels may exclude evidence of the disputed fact;
while conclusive evidence, though similar in effect to estoppels, may originate in
different circumstances. Some judgments fail to distinguish between conclusive evidence
and Estoppels.

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 However, it is important to take note that formal admissions, conclusive evidence and
Estoppels have common feature of affecting the admissibility of evidence. For illustration
the following case is a vivid example estoppels as rule of evidence:
SITANGA V. ATTORNEY GENERAL [1977] H.C.Z
The plaintiff was a prison officer who was retired prematurely by the Commissioner of
Prisons, (he) sought a declaration that his retirement was Null and Void. The
Commissioner argued that having accepted terminal benefits, the plaintiff was stopped
from challenging the validity of the decision to retire him.
The court stated that Estoppels must be pleaded if it is to be made available for defence
by the party which intended to rely upon it. Declaration was granted.
2. AS A MATTER OF PLEADING
Some Estoppels belong to the law of pleading than that of evidence. Read SITANGA V.
Att. General (1977) H.C.Z. For, subject to minor exceptions, a party who proposes to rely
on estoppels must raise this point and state the relevant facts in pleading. This
requirement may involve an exception to the rule that evidence should not be pleaded,
but it does not show that estoppels is not a rule of evidence. Failure to plead an estoppels
may amount to a waves, and thus may result in making admissible facts which would
otherwise be excluded.
In addition to Zambian Authority of SITANGA read also the British old case of
VOOGHT V. WINCH [1819] 2 B & ALD 662 (and CONRADI V. CONRADI (1868)
L.R. IP& D514) when a former judgment between the same point was not pleaded, it did
not operate as an estoppels though it could be proved as evidence of the facts decided.
The requirement of pleading an estoppels is not applicable in criminal trials as there is no
written pleading by defence. Civil judgments do not act as estoppels in criminal
proceedings. However, estopples in criminal proceedings. However, estoppels may occur
in favor of the accused on a defence of AUTREFOIS ACQUIT Read SAMBASIVAM V.
PUBLIC PROSECUTOR [ 1950] A.C. 458 at 479 . P.C, could be pleaded successfully.

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3. AS SUBSTANTIVE LAW
The doctrine of estoppels belongs rather to substantive than to adjective law, and the
same view has been expressed by many invert Judges. Yet it has been shown that
estoppels are not on the same footing as the rules of substantive law embodied in
irrebuttable presumptions, and estoppels will not generally found a cause of action at
common law for they involve no claim. However, an estoppels may support a claim to
equitable relief; an equitable relief; an equitable estoppels or quasi or promissory
estoppels may have that effect when it prevents a plaintiff from proving some fact
essential to his case. Accordingly, estoppels have some characteristics of substantive
Law.
In the case of MUSAKA NYT AND SHAMWANA V. ATTORNEY GENERAL
[1981] H.CZ, (Rejection of Doctrine of estoppels- RES JUDICATA), the facts were that
the two petitioners brought actions by way of motion to the High court which were
dismissed by Judge CHALLA. They then sought to bring the same petitions before
another High Court Judge. The state raised a preliminary issue to the effect that the
petitions were barred by the doctrine of RES JUDICATOR. The court observed that the
same applicants had sought litigation for habeas corpus which was rejected by another
Judge.
Secondly, the procedure used by motion application was wrong, that it would had been
correctly done by an affidavit stating out facts. And thirdly the objection raised was that
the doctrine of res judicator only applies to facts and not Law and that was what raised in
that case was Law. The court further stated that if facts are the same, the law should be
the same. Objection was sustained, Also read HAYWARD V. HAYWARD [1960] P.D.
GREEK V. KETTLE [1937] H.L

110
SUMMARY OF THIS UNIT
In this Unit you were able to learn:
(1) JUDICIAL NOTICE is a product of common knowledge of things or processes which
the parties in litigation request the Trier court to take note.
(2) Courts usually take Judicial notice of things which are Public in nature or notorious
and common in a locality or community.
(3) Judicial NOTICE saves courts time to starting through some things already existing.
(4) That Estoppels helps supports in arriving at a fair or well informed decision.
(5) Estoppels must be reciprocal or mutual for litigants.
(6) Estoppels must be certain.
(7) Estoppels cannot circumvent the Law.
(8) Estoppels can be by record, deed or by conduct.

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ACTIVITY
1. Can the court take Judicial notice of the following:-
(a) That KUDU cows do not grow or have horns
(b) Parliamentary practice
(c) That there is civil war in Nigeria which began in 2010-2015
(d) Signatures of Judges illustrate your discussions with Zambian Authorities as far as
possible.
2. In an action for unlawful dismissal Mr. CHENDELA claims he was dismissed from his job
because he was absent from work for three days without permission. He says he was unable
to return from his annual leave on time as his Aunt had died on the last day of his leave. He
argues that according to his custom, in such circumstances he was required to stay at the
funeral for four days. He asks the court to take Judicial NOTICE of the BEMBA custom of
Northern Zambia. The trial judge agreed and said that from his own knowledge of African
customs, that was correct. Discuss with authorities cited, whether that was a course of action
open to the Judge.

PRESCRIBED READINGS
1. HATCHARD, J. and NDULO M [1991] THE LAW OF EVIDENCE IN ZAMBIA-
Multi-media Publications.
2. NOKES G.D [1967] INTRODUCTION TO EVIDENCE FOURTH EDITION, SWEET
& MAX(SL. LONDON.
3. Cross, w and Tapper C,
4. - 1985) ON EVIDENCE BUTTERWORTHS, LONDON
-(1986) OUTLINE OF THE LAWS OF EVIDENCE.
- MUNDAY R.T.C. 2007, NEWYOK OXFORD UNIVERSITY

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 UNIT FORTEEN
HOSTILE WITNESS
INTRODUCTION
A Hostile witness is an adverse witness who willfully refuses to testify truthfully on
behalf of the party who called him or her. A hostile witness may with leave of the court
be cross examined by that party, for example by putting to him a previous statement that
is inconsistent with his present testimony.

THE LEARNING OUTCOME

In this Unit you will be able to:-
(1) Understand the difference between a normal witness and Hostile witness.
(2) Identify the line of action in dealing with Hostile witness
(3) Describe a privilege who enjoys it and when.
(4) Understand Public policy-its effects

HOSTILE WITNES
A witness is hostile when he or she shows animus against the party calling him, and a
consequent unwillingness to tell the truth. His or her bias may appear from both may appear
from both and except in unusual circumstances the court is the final arbiter on the matter, even
read case of RICE V. HOWARD [1886] 16 Q.B.D. 681, D.C, also R.V. WILLIAMS [1913] 29
T.L.T.R, MUNALULA V. THE PEOPLE [1982]. But it does not follow that even the opposite
party in a civil case, if his opponent chooses to call him as a witness, will necessarily be
considered hostile. Read case of PRICE V. MANNING [1889] 42 Ch. D. 372 C.A.
Hostility is more a common feature in criminal cases, when a witness for the prosecution, for
family or less reputable reasons, at the trial retracts his/her earlier statement given to the Police
or before the Committing Subordinate courts in preliminary cases. In such situations, after
showing a copy of a statement to the court, the Public Prosecutor should apply for leave to treat
the witness as hostile. The Zambian Criminal Procedure Code Stipulates that: A party producing
a witness shall not be allowed to impeach his credit by general evidence of bad character but
may in the case the witness in the opinion of the court prove adverse, contract him/her by other
evidence, or by leave of the court, prove that he has made at other times a statement inconsistent

113
with his present testimony, but before such last mentioned proof can be given the circumstances
of the supposed statement, sufficient to designate the particular occasion, must be mentioned to
the witness, and he/she must be asked whether he/she has made such statement. In the case of
MUNALULA V. THE PEOPLE [1982], the court successfully allowed the public prosecutor to
apply to the court to treat the witness as hostile, on the basis that he had made a previous
statement and what he said was then different from what he told the investigating officer.

PRIVILEGE
This is a special right or immunity in connection with legal proceedings conferred upon a person
by virtue of his rank or office. For example, members of Parliament enjoy certain privileges in
relation to arrest, which, however, do not extend to arrest in connection with indictable offences.
Read, NATIONAL ASSEMBLY ACT of Zambia. There are absolute and qualified privileges.
Secondly, a privilege is in a form of a right of a witness when testifying to refuse to answer
certain types of question or a party when making discovery to refuse to produce certain types of
document on the ground of some special interest recognized by Law. Privileges may be
subdivided into two groups. Public interest privilege and private privilege. The state has always
been able to claim Public interest privilege in relation to secrets of the STATE and other matters
whose confidentiality is essential or critical to the functioning of the Public Service.
It is legally recognized that a similar privilege may be claimed by private parties when some
overriding public interest is involved. Private privileges include the privilege against self-
incrimination, according to which a witness may not be asked a question the answer to which
might tend to incriminate him or her. There is the professional privilege which protects
confidential communications between Lawyers and their clients and between Lawyers and third
parties with a view to advising their clients; and a privilege attaching to, without prejudice,
communications in the course of litigation. And there is MARITAL privilege.

A privilege means a right or duty to refuse to disclose a fact. A privilege may permit or require a
party to decline to answer an interrogatory or to disclose a document before trial, or may permit
or require a witness to decline to answer a question or produce a document at the hearing.
Relevant facts may be inadmissible as being privileged from disclosure. Various matters are
excluded because their disclosure would obvious affect the administration of Public affairs or

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Justice, and these matters can conveniently be described as subject to STATE privilege, while
the remainder may be grouped under the head of PRIVATE PRIVILEGE. A distinction has been
made between exclusion on the ground of public policy and exclusion on the ground of privilege.
But some aspect of Public Policy underlies every privilege such as the avoidance of an evil to
society or third Parties. When the injury resulting from the disclosure of a fact would be greater
than the advantage to be derived from disclosure. The distinction has therefore been supported
by the argument that, whereas privilege may be waived or abandoned, Public Policy demands
that non-disclosure shall not be waived in some cases.
A privilege may be recognized by any Court of Law or tribunal which is bound by the Law of
evidence, including a court-martial, which the latter, the Army, Air force and National Service
(ZNS), and the privileges of a witness in Judicial proceedings apply also to a witness at
Parliamentary and some statutory inquiries.

STATE PRIVILEGE
For the sake of STATE administration. Much of the law privilege has developed with the rules
for the discovery and inspection of documents, since an objection to produce a document before
trial may be taken on this ground. The scope of the privilege is that disclosure of some official
information would be injurious to the interests of the STATE. Clearly the disclosure of a plan to
meet an invasion in time of war would fall within this principle, as involving danger to the
Sovereign. There are many less obvious injuries to the state, including the disclosure of matters
relating to International diplomacy, Read the case of DUNCAN V. CAMMELL, Laind & Co.
Ltd H.L at 642. Further, it has been asserted that an injury to the Public service may be caused by
the prospect of disclosure which hampers the freedom of officials to communicate unreservedly
with each other.
PRIVILEGE has been held to cover reports on conduct officers and others in the British Army
Read; British “STATE Secrets- A comparative study, “Publish in (1951) 14 M.L.R. 121 and on
Railway accidents made to the Ministry of Transport and person detained under Defence
Regulations. Read ANRIN V. L & N.E.Ry {1930] I.K.B. 527 C.A. also R.V Secretary of State
for Home Affairs [1941] I.K.B 72. C.A Communications between a Minister and his
Parliamentary under secretary, read Hennssy V.Wright [1888] 21 Q.B.D. 509, D.C. An early
statement by a witness, because it was connected with a police Report of an Assault in a prison

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and the Police Reports themselves. Read the following cases, AUTEN V. RAYMER [1958]
I.W.L/R and ELLIS V. HOME OFFICER [1953] 2Q.B135.
The privilege extends to a class of documents and there are Statutory powers to make rules
preventing the disclosure even of the existence of a document. The privilege may prevent
disclosure not only of documents in the possession of a government Department or Government
official, but also of private documents which reproduce state secrets, such as a copy of a letter by
a party to his agent setting out confidential information form a British Admiralty as to the
progress of a campaign in an oil-producing country, Read a case in ASIATIC PETROLEUM
CO. LTD [1961] I.K.B 822 C.A
When a document or class of documents has been held privilege, it is not permissible to evade
the privilege by producing a copy or other secondary evidence. It follows that the privilege
cannot be waived or abandoned once it has been established in particular litigation subject
perhaps to the withdrawal of a claim that a document is within a privileged class Read again
ELLIS V. HOME AFFAIRS [1953] L.Q.B. 135, C.A. However, communication between a
Ministry and a Town Clerk delegating statutory powers are not within the privilege Read
BLACKPOOL CORPORATION V. LOCKER [1948] I.R.B. 822.
A claim to the privilege to which the state is a party, an objection to production may be made
either on discovery or other interlocutory proceedings or at the trial. The objection may relate to
the service of an order to produce a document in court (called Subpoena deuces talcum) or a
subpoena to give evidence. In all cases between private persons, unless one of them
communicates to the STATE that discovery is required, objection will usually be made at the
trial after one of the parties has arranged for the service on a Government official of a subpoena
to produce a decorum out. In such cases objection to production may be taken either by the
official, who should have the document in court in obedience to the subpoena, or state counsel or
Advocate specifically instructed by the STATE.
In all other cases the objection will be raised by the solicitors or STATE ADVOCATES by
appearing for THE PEOPLE. And in all cases the point of privileged may be raised at the trial by
the court. The objection usually relates to the production of a document but a witness may not
refresh his memory from a privileged document, Read GAIN V. GAIN [1961] (W.L.R. 1469.
The privilege is also available in respect of oral communications and oral evidence. Read WEST
V. WEST [1911] 27 T.L.R. 189, 476 C.A.

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SUPPORT FOR THE PRIVILEGE
By whatever means the objection is brought to the notice of the court, except, when the point is
taken by the court itself, it should normally be supported by the Head of the Department
concerned. It is normally submitted through an affidavit by the Minister, or Permanent Secretary,
expressing his view that disclosure would be against the public interest. If it arises at the trial, a
certificate of the Minister may be sufficient, but the court may request the personal attendance of
the Minister or Permanent Secretary of some Ministry.
PARLIAMENTARY PRIVILEGE
Parliament has the power to allow publication of debates or reports of cases which fall under its
ambit of functions. This has been a well established vestige from the early British Parliamentary
history which has remained in the rule that members of Parliament may not give evidence in
court of Law as to what was said or done in the National Assembly Chamber without the
permission of speaker of the National Assembly. In appropriate situations the permission is
freely granted, and then any privilege is waived.
JUDICIAL PRIVILEGES
These are general privileges which affect the general administration of Justice. The major
privileges are as follows:-
(1) INFORMATION LEADING TO THE DETECTION OF CRIME
Information leading to the detection of offences should not be unnecessarily disclosed, in fact it
is an offence to do so. And the disclosure is contrary to obvious Public Policy, as it might
prevent such information being given in future, for an informer may suffer odium among his
friends, associates and be a victim of revenge. Further, the immunity of the informer may
encourage persons wronged to seek legal redress rather than to take the law into their own hands.
The recognition of the privilege has been confirmed to proceedings for penalties for breach of
Revenue Laws, Public Prosecutions and Civil cases arising from them. A case in point in 2009-
2010 when the Director of Public Prosecutions in Zambia, rejected the plea from members of the
Public in some quarters and of Law fraternity, to appeal to the High Court in a case of an
acquittal of the late and former Republican President of Zambia Dr. F.T J CHILUBA V. THE
PEOPLE held in the subordinate Court tried by Judge CHINYAMA then Lusaka’s Chief
Magistrate.

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A witness may not be asked whether he himself gave the information, though a Policeman
cannot refuse to say from what place he kept observation of an offence being committed as that
affects the credibility of his evidence, Read the case of Attorney General V. Bryant [1846] 15 M
& S W 169, and Webb V. Catch love (1886) 3 T.L.R. 159, D.C also R.V Richardson [1863] 3 F
& F 693.

(2) INFORMATION FROM A LEGAL TRIBUNAL OR COURT OF LAW.

All members of the Judiciary who are the Magistrates or Judges of a Court of Law or
Tribunal are not usually permitted to give evidence in other proceedings as to matters
occurring at a trial before them, except in cases of perjury and riot in court.
(3) COURT HELD IN CAMERA
There is a duty rather than a privilege on all persons present at proceedings held in private (in
camera), or of which publication is restricted, not to facilitate the disclosure or dissemination
of reports of what took place.

PRIVATE PRIVILEGE
(1) PROFESSIONAL
A breach of the confidence reposed in professional advisers is usually subordinated to the
need for disclosure of these secrets to a court. Thus there is no privilege for confidential
communications with Medical Officers acting in their usual professional capacity, though
communications may fall within another class of privilege, whether state or private. No
privilege is recognized for communications with spiritual advisers, Accountants, Agents,
Bankers or Friends. Journalists have no privilege to refuse disclosure of their sources of
information, though the court has a discretion whether or not to insist on disclosure, Read
SHAMWANA V. THE PEOPLE (Treason Case)
(2) LEGAL CONFIDENCES
The immunity of legal adviser has been recognized for a long time now as a matter of
necessity that breach of Confidentiality as dishonorable to a witness or client in a case at
trial. One reason for the necessity is that, if communications between lawyer and client were
liable to be disclosed in court, there would not be full and unreserved disclosure to the lawyer
and the preparation for litigation or other legal business would thus be impeded.

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 READ LAWRENCE V. CAMPBELL [1859] 4 DREW & 85 at 489, which presupposed that
persons should be encouraged to resort to the courts in proper cases and that they would not
do so unless they could obtain advice without the risk of disclosure there. Privilege thus
covers not only oral communication but also documents.
3. MATRIMONIAL PRIVILEGE
There are three distinct matters connected with marriage which are the subject of privilege.
(i) COMMUNICATION BETWEEN SPOUSES
The rule is that communications between husband and wife need not be disclosed in
court. The rule is considered necessary for the peace of families and the happiness of
human life. However, time has watered down some exaggerated reasons for privilege
the case of Appeal in SHENTON V. TYLER [1939] CH. 620, It was held that no
privilege protected a widow from answering interrogatives as to a secret trust alleged
to have been created by her husband, that no privilege for communications between
husband and wife inadmissible at common Law. In the case of RUMPING V. DPP
[1964] A.C 814, on an appeal against conviction for the murder of a woman at a port
in Wales by the mate of a Dutch ship.
The accused, who was arrested at LIVERPOOL, had given a seaman for posting a letter
addressed to his wife, which amounted to a confession of some serious offence. The letter was
not posted but came into the possession of the prosecution and was admitted in evidence. It was
held that it not fall within any statutory privilege and was admitted.
(ii) MARITAL INTERCOURSE
There is presumption of the legitimacy of the ISSUE born during or shortly after
determination of a valid marriage. In the case of Good right & Stevens V. Moss
[1977] 2 Co. 591 at 594, it was regarded as contrary to decency, morality and policy
that either husband or wife should give evidence of non-access to or by the other
spouse, for the purpose or with the effect of showing that the wife’s child could not
have been begotten by the husband. Yet the presumption might be rebutted and child
illegitimatized by any other evidence, as by that of a third person proving that the
husband was abroad at the time of inception. Evidence of access was excluded,
though it could have supported the presumption of legitimacy. Matrimonial Causes
Act of 1965 and reprinted in 1973 provides that evidence of husband or wife shall be

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admissible in any proceedings to prove that Marital intercourse did or did not take
place between them during given period, but that the husband or wife shall not be
compellable in proceedings to give evidence of the matters aforesaid. It is revised
law. Also read MUSHAUKWA V. THE PEOPLE ON APPEAL

PRIVILEGE AGAINST INCRIMINATION

The Theory is that no one is bound to incriminate himself or herself (NEMO
TENTUR PRODERE OR ACCUSARE SEIPSUM), this is in reference to persons
accused in criminal trials, the parties in civil cases, and the witnesses in both, as also
to the scope of privilege. However, if the accused gives evidence on oath at the trial,
either summarily or on indictment, the privilege does not extend to the offence with
which he is charged, and it may be lost in respect of other offences when they are
relevant or occasionally when he puts his character in issue, please Read R.V KING
[1965] I.W.L.R 706, C.C.A. for vivid illustration.
The privilege against self-incrimination by a witness is statutory and is regulated by
the judicial discretion meaning its limits depends mainly upon judicial decisions in
courts or Tribunals. The privilege may be waived, but if it is not waived a claim to
privilege can be made on discovery of documents by a party or more usually by a
witness in the box when the objectionable question is first asked, though this is not
always the case in all cases. The tribunal or the court will dictate to whether the claim
will be justified. The relevant principles were laid down in the case of TRIPLEX
SAFETY GLASS CO. Ltd V. LANCEGAYE SAFETY GLASS [1934] Ltd[1939]
L.K.B. 395 at 403, 404 which were concisely stated as:-
1. The mere fact that a witness swears that this would tend to criminate him is not
conclusive.
2. The court will insist upon an answer if the witness is trifling with the court.
3. The power of the court to insist on an answer is not limited to a case of bad faith,
but extends to any case where it does not appear that there is reasonable ground to
apprehend danger to the witness from his compelled to answer.
4. If it is held that there is no privilege, but the witness still declines to answer, he
runs the risk of committal for contempt of the court. But if he is improperly

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compelled to answer, his reply is inadmissible against him in subsequent
proceedings.
Scope of the privilege against incrimination is that it is confined to liability to
prosecution for a crime, or the recovery of a penalty or exaction of a forfeiture.
Liability is probably not the sole criterion. When the relevant foreign territorial
law has been proved or admitted, liability to forfeiture by that law is sufficient.
Read U.S.A McRAE [1867] L.R. E E4 327 3 Ch. Appeal 79.
Though the same rule may apply to liability for foreign penalties and crimes, if
liability cannot be established, or the prospect of witness being within the foreign
jurisdiction is remote, the rule may not apply.
Incrimination involves a real and appreciable danger, with reference to the
ordinary operation of the Law in the ordinary course of things. Please read R.V
Boyes [1861] IB $ 5.311, the witness objected to answer a question on the ground
that he would be implicated in the same offence as the accused. He was promised
indemnification or pardon for that offence. The protection afforded by the
privilege terminates as soon as the liability to Prosecution, penalty or forfeiture
ceases.
PRIVILEGED DOCUMENTS OF TITLE
Documents of title are privileged form production, because their disclosure might
have revealed a technical flaw in the title to Land, the most cherished possessions.
The privileged may be waived, but a person rightfully refusing to produce a deed
cannot be questioned as to its contents. In other circumstances secondary evidence
is admissible.

In conclusion privileges are professionally and socially necessary to protect

reliance interests which encourage certain communications which are desirable
because communications are protected relationships because they enhance the
achievement of beneficial results such as the promotion of Justice, Public health
and Social stability. These goals are promoted in furtherance of a well organized,

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 peaceful society, which in turn is considered necessary for human survival.
PLEASE READ THE CASE OF STATE V. 62.96247 ACRES OF LAND in New
Castle County [1963] 193 A. 2 d 799, U.S.A (AMERICA), WAUGH V.
BRITISH RAILWAYS [1980] H.L Wheeler V. Le Merchant [1881] C.A and
British steel corp. V. GRANADA TELEVISION [1981] H.L

PUBLIC POLICY
Public Policy demands that non-disclosure shall not be waived in some cases. Some aspect of
Public policy underlies every privilege such as the avoidance of an evil to society or third
Parties, when the injury resulting from disclosure of a fact would be greater than the advantage
to be derived from the disclosure.

STATE INTERESTS
In the case of CONWAY V. RIMMER [1967] H.L, the plaintiff, a former probationary
constable, after unsuccessful prosecution against him, began an action for malicious prosecution
against his former supervisor a superintendent. In the course of discovery, the defendant
disclosed a list of documents in his possession or power, admittedly relevant to the plaintiffs
action, which included four reports made by him about the plaintiff during his period of
probation, and other reports which were transmitted to D.P.P for his criminal prosecution he
went through, on which he was acquitted and on which his civil action was based. In return, the
secretary of State for Home Affairs objected in proper form to the production of all five
documents on the ground that each fell within a class of documents the production of which
would be injurious to the Public interest.
Public Policy rule deals with the proper relation between the powers of the executive and powerd
of the courts, reference is made to the case of DUNCAN V. CAMMEL, LAIRD & CO LTD
[1942] A.C 624; 58 TLR 242, in which it was stated that “it would be injurious to the public
interest that any of the said documents should be disclosed to any person” Any of the documents
if they were to be releases would give clues to skilled eye an agent of a foreign power. Please
read the following cases:-
(1) Coomber V. Berkshire Justices [1883] 9 App cas 61, H.L
(2) GAIN V. GAIN [1961] I.W.L.R 1469

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(3) BURMAH OILCO LTD V. GOVERNOR AND COMPANY OF THE BANK OF
ENGLAND [1980] A.C 1090, 1145.
In the Zambian case of DANIEL CHIZOKA MBANDA NGOMA V. ATTORNEY
GENERAL [1977] H.C.Z the brief facts the plaintiff in a civil action against the state
applied that a witness for the defendant be ordered to disclose the identity of a police
informer on whose information the plaintiff was charged with theft by Pubic servant. The
defendant objected on the ground that as a matter of Public Policy the identity of a police
informer should not be disclosed. The objection was allowed. Read also case of D.V
National Society for the prevention of cruelty to children [1978] H.L, it was held thereof
that there should be no discovery or inspection of documents by the defendants where or to
the extent that such documents reveal or are capable of revealing the identity of the
NSPCC’s informant.

THE SUMMARY OF THE UNIT

In this Unit you were able to:
(i) Understand who is an adverse witness who proves unfavourable or hostile to the side
which called him.
(ii) That it is a judicial discretion of the court to allow or disallow vexatious and
irrelevant question to a hostile witness.
(iii) Describe privileges and cited incidents when they are not qualified as exclusionary
rules of evidence which intend to withold evidence which is regarded as unreliable
or regarded as prejudicial or misleading. And that privileged communications have
no such purpose.
(iv) Understand the use of Public Policy and what it is meant to protect and prevent all
that is likely or is actually injurious to the Public interest.

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ACTIVITY

1. Differentiate between HOSTILE witness and Refractory witness citing Zambian Authorities
in your narrations or discourse.
2. Chongololo Highland Local Authority is the plaintiff in an action where it is claiming a
declaration that a certain way across land of which the defendant is the owner of a public
right of way. The defendant, giving evidence, states that until these proceedings had had
never heard of anyone claiming the use of the way in question. As a lawyer of
CHONGOLOLO Highland Local Authority, you have in your possession a letter written to
an advocate by the defendant some years ago complaining that a man was using the way and
claiming a right to do so and asking what steps could be taken to stop the man using it. You
are also aware that the defendant had a similar claim a year ago and that the dispute was
settled b the Parish Priest. What use can you make of these matters in the case of
CHONGOLOLO Highland Local Authority?
3. An aircraft testing electronic equipment crashed killing some of the crew and three civilian
electronic engineers who were monitoring the equipment. The widows of the engineers sued
the Government. In court, the plaintiffs asked for the production of the Airforce’s official
accident investigation report and the statements of the survivors of the crash taken in
connection with the official investigation. The government claimed the information was
privileged. Discuss, and illustrate by citing authorities Zambian or from Commonwealth.

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References:-
(1) Hatchard, J and Ndulo, M (1991) The law of Evidence in Zambia, LUSAKA, M,ultimedia
Publications
(2) NOKES, G.D. [1962] Introduction to Evidence, 3rd amd 4th Editions (1962-1967) LONDON,
Sweet & Maxwell
(3) Cross, W and Tapper 1986 outline of the Evidence 6th Edition, London, Butterwodle
(4) Munday R.JC. Evidence 2nd edition, Newyork, Oxford University Press.

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