Documentary evidence case summaries

Geroge Bienga v the people

Facts: The appellant was convicted of theft by public servant. The appellant who was in
charge of the police station at Livingstone, had received K1,770.00, which had been received
from a prisoner, and had signed a receipt for it in a register. Later M took over from him and,
whilst handing over, the contents of the safe were removed in his presence and in the
presence of another officer and were recorded on a piece of paper by M. The recorded paper
was signed by the appellant and M
Thereafter the recorded paper was typed. In the typed copy the amount in issue was not
included. At the trial the typed copy was produced as the original paper was not available.
The person who had typed from the original was not called as a witness.

It was contended that in the absence of the original, the typed record should not be admitted
as evidence.

Held:
(i) The secondary evidence of the original document is admissible provided it can be
established that the original is lost or cannot be produced. Secondary evidence may either be
in the form of a copy of the original or by oral evidence.

(ii) When the original document is in the possession of a stranger, the proper course for
the party desiring to prove the contents of the document is to serve the stranger with a witness
summons to produce the original.

(iii) Before secondary evidence of a lost document can be admitted, the court must be
satisfied that the document cannot be found and an adequate search has been made.

(iv) It is difficult to lay down any general rule as to the degree of diligence necessary in
searching for the original document to entitle the party to give secondary evidence of the
contents. If document be of considerable value, or if there be reason to suspect that the party
not producing it has a strong interest which would induce him to withhold it, a very strict
examination would be required; but if a document is useless, and the party could not have an
interest in keeping it back, a much less strict search would be necessary.

Reasoning and case points:

' When the original of a document is in the possession of a stranger to the litigation, the
proper course for the party desiring to prove the contents of the document is to serve the
stranger with a subpoena duces tecum. The stranger may, however, be able to establish a
claim to privilege in respect of the document when secondary evidence of its contents
becomes admissible.'

Before secondary evidence of a lost document can be admitted, the court must be satisfied
that the document cannot be found; the question whether an adequate search has been
undertaken is a matter for determination by the court. Mufana, who prepared the original,
said in evidence that the original was lost and, on a second occasion, that he thought that it
had been destroyed. This evidence could hardly be considered adequate to satisfy the trial
court that a proper search had been undertaken and that the original could not be produced
at the trial. Best, J., in Brewster v Sewell (2) at p. 674, said:

AFRI OPERATIONS LTD -VS- AMANITA ZAMBIAN LTD-1File

the Plaintiff filed its bundle of documents on 15 th January, 2009; the said
bundle contains, inter alia, emails purportedly exchanged by it and the First
Defendant’s representative; the Defendants object to the production of the
said emails into evidence on the ground that they have not undergone the
normal procedure of a foundation being laid before their production into
evidence; further that, the emails have not been authenticated and in the
absence of the Plaintiff showing that the integrity of the purported emails
was maintained, the Defendants will be unfairly prejudiced; and the
Defendants request for the exclusion of the alleged emails from evidence in
the interests of justice.

In conclusion, the Defendants’ application succeeds, to the extent I have

stated above and I accordingly uphold it. I also award the Defendants costs
of and incidental to this application.

HOLMES LIMITED v BUILDWELL CONSTRUCTION COMPANY LIMITED (1973) Z.R. 97 (H.C.)

The plaintiffs agreed in writing to hire a grader to the defendants. The terms of this
agreement included a clause to the effect that the plaintiffs would provide a driver. The
grader was delivered to the defendants but no driver was provided. The defendants
repudiated the contract about one month later. The plaintiffs alleged that it had been
verbally agreed between the parties that the defendants would provide transport so as to
enable the plaintiffs' driver to reach the place where the grader was to be operated. The
plaintiffs further alleged that the defendants failed to provide the transport and thereby
were in breach of the contract. The plaintiffs claimed damages for the hire of the grader.
The defendants counterclaimed for breach of contract by the plaintiffs in failing to provide
a driver.

Held:
(i) Where the parties have embodied the terms of their contract in a written document,
extrinsic evidence is not generally admissible to add to, vary, subtract from or contradict the
terms of the written contract.
(ii) By way of exception to the above rule, extrinsic evidence may be admitted to show
that the written instrument was not intended to express the whole agreement between the
parties.
(iii) In order to invoke the exception the burden of proof was in this case upon the
plaintiffs.
(iv) Any discussion of verbal conditions before the written agreement was completely
superseded by the written document.
(v) Since the written agreement did not provide that the defendants should provide
transport for the driver the latter had no obligation to do so and the plaintiffs were in
breach of their contract by failing to provide the driver. Their claim for the hire price
therefore failed.
(vi) If a party indicates before the time of the contract that it will not fulfil its obligations
the other party may either repudiate the contract forthwith and sue for damages or wait
until the time of performance and then sue.
(vii) The defendants were justified in repudiating the contract and were entitled to
succeed in their counterclaim.
(viii) As the defendants did not repudiate at the time of performance but delayed
exercising their right until after one month they were entitled to nominal damages only.

LUFEYO MATATIYO KALALA v THE ATTORNEY-GENERAL (1977) Z.R. 310 (S.C.)

Facts: The appellant (the plaintiff) sued the Attorney-General (the defendant) for damages
for assault, torture and false imprisonment. During the course of the plaintiff's evidence he
sought to produce two medical report forms which he received when he was medically
examined on the day of his release from police custody. There was no objection to the
production of these forms and the documents were admitted in evidence without comment.

Held:
(i) The only way a document may be received in evidence other than by production by
its maker is under the Evidence Act, Cap. 170.

(ii) Before the court can exercise its discretion to admit a statement 40 without the
maker being called as a witness, it must be satisfied that undue delay or expense would
otherwise be caused.