CAVENDISH UNIVERSITY UGANDA

COURSE: BACHELLORS OF LAW

MODULE: EVIDENCE LAW II

SUBJECT CODE: LLB 223

STUDENT: KEITA WYCLIFF

TERM: SWAP FIVE 2019

Qn. Documentary evidence is the most important evidence in proving a case. With the help
of case law and statutory provisions discuss the modes of proving a document.

1
Section 2 (1) (b)1defines a document to mean any matter expressed or described upon any
substance by means of letters, figures or marks or by more than one of those means, intended to
be used or which may be used for the purpose of recording that matter. Documentary evidence is
therefore any evidence introduced at a trial in the form of documents for the inspection of the
court. Suffice it to say that under the Law of Evidence, a document means more than its ordinary
English meaning and has been held to include any media by which information can be preserved.
Such as hand written or word processed material, photographs, tape recordings, films, and
printed emails, sign posts, tombstones e.t.c.

The general rule under the law of evidence is that documents must be proved by primary
evidence. This is stated in section 632. The aspect of proof of execution of a document is
important because before a document is admitted in evidence it must be proved to the court to be
genuine i.e. it must be shown that it was duly executed by the person or persons who appear on
the face of the document as signatories. This principle is well articulated in Stamper v Griffen3,
where it was held that no writing can be received in evidence as a genuine writing until it has
been proved to be a genuine writing and none as a forgery until it has been proved to be a
forgery. That a writing of itself is not evidence of one thing or the other and therefore is not,
unless accompanied by proof of some sort, admissible as evidence.

Documents are of three broad categories and the proof of a document depends on its category.
The genuineness of each category of documents is proved in its own way as evidence in court.
Section .76 and 774 Public Documents can be proved by certified copies by the releasing body.
Section 785, sets a presumption that every certified copy of a public document shall be presumed
to be genuine. Under section.766, certified copies may be produced in proof of the contents of
public documents of which they purport to be copies.

1
. Evidence Act cap 6
2
Ibid
3
. (1856) 20 Ed. 320
4
. Evidence Act cap 6
5
.Ibid
6
.opcit

2
Private documents on the other hand are required by Law to be attested. Section 67 7 provides that
if a document is required by law to be attested, it shall not be used as evidence until one attesting
witness at least has been called for the purposes of proving its execution; if there is an attesting
witness who is alive and is subject to court process and who is capable of giving evidence. There
are however exceptions to this rule. Under section 688 in case no attesting witness can be found,
it must be proved that the attestation of at least one witness is in his handwriting and that the
signature of the person executing the document is in the handwriting of that person. Section 69 9
provides that an admission of a party to an attested document that he has executed it is sufficient
proof of his execution against him even if the document is required by law to be attested.

In Gatheru v Republic10, which is an authority on this rule, it was held that an expert need not
have acquired his skill academically but it also includes skill acquired through practical
experience. Under s. 45, a person who is acquainted with the handwriting of a person who is
alleged to have executed a document can give evidence thereof. In Salum v Republic11, it was
held that care should always be taken not to give an expert’s evidence too much weight, except
where the writing is suspect as held in Walusimbi v Standard Bank 12

Although section 6313 generally provides that documents must be proved by primary evidence
which in practice means that a person who wishes to rely on a document as evidence in his case
must produce an exhibit of the original to court, it further gives exceptions of those
circumstances that are provided for under the Act. The law of documentary evidence is argued to
originate from the primitive way of trial by documents. Under this situation if a person produced
a document it was viewed as sacrosanct and that person won the case. If a person produced a
copy then he would lose the case since only an original could stand up in court. This became
unfair and a number of exceptions were developed to remedy this unfairness. For example, court
provided an equitable remedy under which one would seek an “order of discovery where by one
would apply to court to compel the adversary to produce certain documents in his or her
7
Evidence Act cap 6
8
Ibid
9
Opcit
. (1954) 21 EACA 384 CAK
10

. (1964) EA 126
11

. (1981) HCB 193

12

13
Evidence Act cap 6
3
possession for the examination of the party who did not have them. Secondly, where the original
document was proved to be lost the court would allow secondary evidence to be adduced. These
exceptions still exist under common law and have also been incorporated into Ugandan law.

Section 6414 of the Act contains the instances under which secondary evidence of the contents of
documents may be given. Under the section, secondary evidence may be given when the original
is shown or appears to be in the possession of the person against whom the document is sought to
be proved or in the hands of any person who is out of reach or not subject to court process or of
any person legally bound to produce it before the court but who after being given notice to
produce it does not do so. In Lakhamani Ranji v Jessa & Sons15 court held that the carbon copy
was properly admitted under S.6316 (a) which is equivalent to s.64 (a)17 of Uganda‘s Evidence
Act.

Under s. 64 (b), when it is proved that the contents, existence or condition of the original have
been admitted in writing by the person against whom they are sought to be proved or by his
representative in interest, then the need for the original may be dispensed with. By way of
estoppel, if a party to proceedings has by prior conduct relied upon or represented that a
document is genuine, there may be no need to call an attesting witness because the doctrine of
estoppel stops him from denying its genuineness.

Under section.64(c)18 three main circumstances under which secondary evidence may be
admitted are provided:
(a) Where the original is destroyed or lost. To rely on this circumstance, it must be proved that
the original document existed and that a diligent but failed search was conducted. In order to
prove destruction, one must prove the existence of the document and actual destruction. This can
be done by swearing an affidavit or calling witnesses to testify to the destruction.

14
Evidence Act cap 6
15
. (1965) EA 125,
16
ibid
17
ibid
18
ibid

4
(b) Where the original is in the hands of a person who is not legally bound to produce it and who
after being given notice to produce it does not do so. This circumstance envisages a situation
where a person is not a party to the suit but has custody of the document.
(c) Where a person seeking to adduce the document cannot, for any other reason not arising out
of his own default or neglect, procure the production of the document in reasonable time. Under
these circumstances, any kind of secondary evidence can be adduced.
(d) If the original is of such a nature as not to be easily movable, then a person can apply to court
to give secondary evidence and under the section; any kind of secondary evidence will be
admissible.

Under s.64 (e) and (f),19 other exceptions are provided. Under (e), where the original is a public
document within the meaning of section 73 and under (f) 20 if the original is a document of which
a certified copy is permitted by the Act or any other law in Uganda to be given in Evidence,
secondary evidence of the certified copy of such document can be allowed. Under s. 64(g), if the
original consists of numerous accounts of other documents which cannot be conveniently
examined in court and the fact to be proved is the general result of the whole collection,
secondary evidence may be admitted. In John Baptist D’sa v R21, Court held that section 63 of
the Evidence Ordinance which is equivalent to Uganda’s Evidence Act section 64 (g) sets out
exceptions to the general provision of section 62 or section 63 for Uganda’s case, which requires
documents to be proved by primary evidence. Inter alia that the documents must consist of
numerous accounts or other kinds of documents not capable of being conveniently examined and
that the secondary evidence must be for the purpose of proving the general result of the whole
collection.

Under section 6822, un attested documents can be proved provided that the document alleged to
be signed or to have been written by any person under whose signature or in whose handwriting
it is alleged to be is proved to be in his or her handwriting. Under section 71 23, un attested
document which is not required by law to be attested may be proved as if it was attested. Section
19
Evidence Act cap 6
20
ibid
21
. [1957]
EA 627
22
Evidence Act cap 6
23
. Evidence Act cap 6

5
72 (1)24 provides court with powers or authority to compare a person’s hand writing for purposes
of ascertaining handwriting, signature or seal. Under section 72(3), the same provision applies to
cases of finger impressions.

There are other exceptions outside section 63 and 64 as to the proof of documents. These are
known as presumptions which are provided for under S.325 of the Act and it provides for
inferences that a court may make of the existence or non existence of certain facts. Section 3 (1)
state that whenever it is provided by this Act that the court may presume a fact, it may either
regard that fact as proved, unless it is disproved, or may call for proof of it and in 3 (2),
whenever it is directed by this Act that the court shall presume a fact, it shall regard that fact as
proved, unless it is disproved. There are several presumptions to this effect as elucidated
hereunder:

Record of proceedings of the trial court It is presumed that these are good records and therefore
genuine and can otherwise not be challenged on appeal. This is provided for under s. 79 of the
Evidence Act. In R v Mitha26, the accused was charged with perjury. At his trial, court’s record
of evidence was used as the main proof of the false statements made by the accused which he
challenged on appeal. It was held that under section 78 (now 79), court may presume that
evidence recorded is evidence which was actually given and used against the accused.

Presumptions as to Depositions; a deposition refers to a situation where the witness, for a reason,
cannot be present in court to give evidence in person and instead a deposition is sent to court.
Under order 48 of the Civil Procedure Rules, court may constitute a commission to go and take
evidence where a person is found. That deposition will be presumed genuine unless evidence to
the contrary is proved. In Magoti v R27, court held that the original depositions transmitted to the
High court may generally be put in evidence without further proof and that there was no need to
call the clerk who recorded the deposition in order to adduce it in evidence.

24
.ibid
25
ibid
26
. (1962) EA 312
27
. (1953) EACA 232
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Under section 8028, there is a presumption as to the genuineness of gazettes, News papers and
private Acts of Parliament. Under section 81, there is a presumption as to documents admissible
in the United Kingdom or Ireland. In Venn v Venn29, an affidavit of service upon a woman in a
Divorce cause was sworn before a Commissioner for Oaths in England. The issue was whether
an affidavit sworn before a Commissioner in England was admissible in Kenya. Court held that it
was admissible having regard to s. 82(1) of the Kenya Evidence Act (which is equivalent to s.
81(1) of the Uganda Evidence Act).

Under section 82, the court is bound to presume the genuineness of maps or plans purporting to
be made by the authority of government. This was considered in Magoti’s (supra) case where
the court held that where a sketch plan is produced in evidence, it must be proved and it is better
that information obtained in regard thereto should be kept separate from the plan.

Section 84 (a) – (e)30 provides a presumption as to private documents executed outside Uganda
and how they can be proved. It is stated that: “The court shall presume that private documents
purporting to be executed out of Uganda were so executed and were duly authenticated in
accordance with the provisions of the Act.

Under section 8531, a power of Attorney is presumed to have been sworn before a person with
that authority. Section 86; there is a presumption as to certified copies of judicial records of
countries not part of the commonwealth. Under section 87, court may presume the genuineness
of any book, map or publication which may be referred to in matters of public or general interest.
Under section 89, a court shall presume that every document called for and not produced after
notice to produce is genuine. Under section 90 there is a presumption as to the genuineness of
documents of thirty years which are in custody which the court considers proper.
In conclusion under the law of evidence, the general rule is that documents must be proved by
primary evidence. This is important because before a document is admitted in evidence it must
be proved to the court to be genuine or it must be shown that it was duly executed by the person

28
Evidence Act cap 6
29
. (1958) EA 264
30
. ibid
31
ibid

7
or persons who appear on the face of the document as signatories. However due to the unfairness
the rule create to the adversary party; there are exceptions that created under section 64 of the
Evidence Act to mitigate this disadvantage. These exceptions must be credibly justified in order
for them to vitiate the primary rule. The Act further under section 3 creates a presumptions as to
the authenticity of documents vide sections 79 - 90 of the Act.