ISLAMIC UNIVERSITY IN

UGANDA

BACHELOR OF LAWS (LLB)

STUDY MATERIAL
LAW OF EVIDENCE

Prepared by: Nakanyike Bushira

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SEMESTER I: COURSE CONTENT.
The study of evidence is an investigation into the methods of proof of facts. The Law of
evidence deals with Public and Private law, statutory, as well as procedural. It therefore
means that while other branches of law provides for the rights, responsibilities and status of
Parties to the suit, this section of the Law lays down the means and procedure through which
litigants appearing before the tribunals and/or courts are able to enforce or realize their rights
or responsibilities. This branch of the Law provides for the methods for proof or disproof to
peoples rights. The law of evidence as a subject consists of the following;

1. General Rules as to Relevance and Admissibility of Evidence; This area provides for
what kind of evidence which is relevant to a particular fact and what sort of evidence
will a court or tribunal admit to be adduced in the circumstances. This section
provides for the Principles of Res Gestae.

2. Admission and Confessions; the second part deals with this kind of evidence. Both
terminologies refer to accepting certain facts in the cases before court or tribunals.
Admission is a concept used in Civil cases while Confession in criminal cases. These
principles are applied where a person’s words or statements may be adduced in
evidence against him or her. It applies to both civil and criminal cases. We shall be
looking at the means under which the statements or words can be used once obtained
from any person.

3. Evidence of Opinion; this derives from the general principle of Law that Opinion
evidence is inadmissible save where it allowed in particular circumstances.

4. Character evidence; it looks at the general reputation of a person. It is grounded on

the cardinal principle that a person is innocent until proved guilty. In other wards, a
person cannot be victimized or judged to be guilty simply because of he or she is
reputed to be of a bad character. Character evidence may be adduced only in
circumstances prescribed by law.

5. Hearsay evidence; it should be noted that facts or things which may be logically
relevant may not have legal relevancy. For that reason, the law of evidence precludes
hearsay evidence even if it may have a high evidential value. This is because that kind
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of evidence is much suspected in the eyes of law. Heresy evidence is found to be
unreliable since its veracity cannot be tested while at the same time it tends to widen
the scope of investigations therefore putting parties at a disadvantage more especially
the accused person in criminal cases.

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Nature and history of the law of evidence and Historical Development of the Law of
Evidence
The gist of the law of evidence presupposes that Courts or tribunals seek to determine facts
by means of rational processes. This is contrasted with earlier forms of procedure where the
determination of facts was done through either Devine guidance, or some other literal
manner. For instances, procedures like trial by battle, compurgation (the act or practice of
justifying or confirming a man’s veracity by oath of others ) or trial by ideal were frequently
employed.

These procedures were at some point gradually replaced by newer methods in which court
sought to apply those facts. Gradually, there developed a set of principles in determination of
facts. Rules of evidence were thus brought into operation. Rules of evidence were developed
and elaborated by judges in the course of deciding issues before them. One of the rules
advanced as a general principle of law of evidence is the Best Evidence Rule.

According to Bentham, the law of evidence deals with persuasion concerning the existence of
matters of fact. Bentham does not perceive evidence as a concept only employed in courts of
law but as one relied upon in all human activities both scientific and non-scientific. Bentham
defines evidence as a word of relation, meaning any matter of fact, the effect tendency or
design of which when presented to the mind is to produce a persuasion concerning the
existence of some other matter of fact

Bentham makes a distinction between primary fact and evidential fact. The distinction has
been expressed more generally as between Factum probandum and Factum probanse. The
relation between the two principles has subsequently been called Relevance.

Best (an author) did not adopt Bentham’s basic notion. He points out that Bentham was
wrong in assuming some unitary view of evidence being applicable in all human activities,
scientific and non-scientific and capable of dealing with all sorts of evidence in courts of
Law. Best asserts that there is a distinction between the approach required for any
determination of facts by other human beings, Historians, scientists, Businessmen or ordinary
citizens and the qualified approach which courts of law must adopt because of the conditions

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of litigation and the policies that courts of law carry out. This distinction gives rise to the
concept that Best called Natural Evidence and Judicial Evidence.

According to section 2 (1) (d) of the Evidence Act, the term evidence denotes the means by
which any alleged matter of fact, the truth of which is submitted to investigation, is proved or
disproved and includes statements by accused persons, admissions, judicial notice,
presumptions of law, and ocular observation by the court in its judicial capacity. The rules of
evidence therefore aim at achieving the following;
1. To establish as to whom has the burden of proof in given circumstances and that the
duty is on the person bearing the burden to prove his or her facts.
2. To describe facts to be proved. Determine which facts to be admitted i.e. relevance
and admissibility of evidence.
3. To prescribe facts which are excluded from the consideration of courts?
4. To prescribe methods by which proof may be effected.
5. To prescribe the extent of proof required in particular cases as well as the ethicacy of
certain pieces of evidence.

Reference;
Nokes. An introduction to evidence.

The Law Applicable

The Ugandan Law of Evidence is basically statutory and it is mostly found in the Evidence
Act Cap 6. The bulk of this law was derived from the Indian Statutes of Evidence i.e. the
Indian Evidence Act 1872 which was an attempt at codification of English Common Law.

In 1889, the British Colonial Government passed an Order in Council for setting up Consular
courts in East Africa and these courts were given the mandate to apply Indian Statutes in the
administration of justice. It was until 1909 that the Local Statute Evidence Ordinance based
on Indian Act was enacted. The subsequent legislations have been made by way of
amendment affecting the Evidence Act. It should be noted that there are various Laws that
affect the Evidence Act. i.e. Trial Indictment Act, Magistrates Courts Act, Foreign Tribunals
Evidence Act to mention but a few.
Scope and interpretation of the of Evidence Act
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Interpretation of the Evidence Act
It is important to note that the major purpose of codification is to put together unwritten Laws
for purposes of certainty and easy access. E.g. Common Law principles were codified in
British colonies for those reasons. Some times problems arise with regard to questions of
interpretation of the codified Law. i.e. How should the codes be interpreted? Must the law be
interpreted with reference to Common Law or not?

The matter of interpretation was considered in the case of Wallace Johnson v. R (1940) AC
231, The Privy Council interpreted statutory provisions of the words contained in the charge
of sedition contrary to the Penal Code of the Gold Coast. It held in that case that the words of
the definition in the Act were clear and unambiguous and that incitement to violence was not
a necessary ingredient of the crime of sedition and that the criminal code of the Colony of the
then Gold Coast nowhere required proof of violence. Reason for this decision is that the
object of codification would be defeated if express reference as to interpretation was sought
in English cases. It is trite law that in interpreting an enactment the Court should have regard
not merely to the literal meaning of the words but also to take into consideration the
antecedent history of the legislation, the purpose and the mischief it seeks to suppress.

Thus the general rule in interpreting codes is that we should look at the words used and attach
to them meanings intended. See the case of Chihana v Republic (MSCA Criminal Appeal No. 9 of
1992 ) Unreported. In this case the appellant was convicted by the High Court of Malawi on
a first count of importing seditious publications contrary to Section 51(1) (d) of the Penal
Code and on a second count of being in possession of seditious publications without lawful
excuse contrary to S.51 (2) of the said Code. He was sentenced on the first count to a term of
imprisonment of 18 months with hard labour and on the second count he was sentenced to a
term of imprisonment of 24 months with hard labour. The Appellant appealed against both
the conviction and the sentence. It was argued for the appellant that incitement to violence
was a necessary element in offences of sedition under English Common law and that since
Section 3 of Penal Code of Malawi required the provisions of the code to be interpreted in
accordance with the principles of legal interpretation obtaining in England, the law of
sedition in Malawi should have been construed consistent with the principles of English
Common law.

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In making its founding on whether or not the law of Malawi admitted the element of
incitement to violence, the court found it proper to carefully consider the statutory provisions
of the seditious intention as defined by the Penal Code of Malawi and found that words used
must have their ordinary grammatical meaning.
The court further concluded that it does not follow that any section enacting the law of
sedition must of necessity invariably be inconsistent with a constitution. It must and will
depend upon the facts and circumstances of each particular case having regard to the words
of a particular law of sedition and the provisions of the Constitution in issue. See also R v
Brabin Khosla [1947] 14 EACA 80 where court said that although the Act was derived from
the codification of English Common Law, it was not the rule that English cases should be
followed in interpreting it since. This was considered to be a separate Statute.

Scope of the Evidence Act

Section 1 of the Evidence Act provides that the Act shall apply to all judicial proceedings in
or before the Supreme Court, the Court of Appeal, the High Court and all courts established
under the Magistrates Courts Act, but not to affidavits presented to any court or officer or to
proceedings before an arbitrator. The section implies that the Act is applicable to all persons
appearing before courts without exceptions and to all matters before courts in Uganda. In
other wards, the Act is geographically limited to Uganda.

However, it is expressly provided that the Act does not apply to affidavit. The matter was
considered in the case of London Overseas Trading Company versus Raleigh where court
noted that The Evidence Ordinance does not apply to affidavits.

Terms/Preliminary Definitions
In the study of the law of Evidence, there are various terminologies that are employed to
which specific meaning attaches. Some times, the meaning of the terminologies may be
different from the ordinary meaning of the words.
1. Oral Evidence- Refers to all statements which the court permits or requires to be
made before it by witnesses in relations to matters of fact under inquiry. The term
“statement” in a number of court decisions has been held to include gestures or signs
where a person cannot speak. Accordingly, the signs or gestures amount to oral
evidence.
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2. Prema Facie evidence- It’s that evidence which establishes a fact and the fact will be
presumed to exist unless there is contrary evidence.

3. Conclusive evidence- This is opposed to prema facie evidence. It refers to evidence

that which is adduced and cannot be contradicted. It is enough for a court or tribunal
to make a finding in a particular direction e.g. once there is a decree of divorce, its
indicative enough that marriage has been terminated.

4. Real Evidence- Its evidence of a material nature. It physical and can be felt. This
evidence is usually produced as an exhibit in courts and admitted when courts draws
inference from its own observations of some material objects rather than relying on
observations of witnesses. Usually admission of real evidence must be accompanied
by the testimony of the witnesses to identify or explain it.

5. Direct evidence- This may be used in two senses. When distinguished from hearsay
evidence, it’s that evidence of that person who saw, heard, felt or perceived the fact in
issue.

6. Hearsay evidence- refers to assertions of persons other than the witness who is
testifying offered as evidence of truth of that which is asserted rather than evidence
that the assertion was made.

7. Circumstantial Evidence- Means evidence which is a result of a conclusion from a

series of events. It refers to any fact or fact relevant to a fact in issue from which the
existence of a fact in issue may be inferred. a piece of circumstantial evidence may be
proved by any other evidence including circumstantial evidence. Fact in issue are
indirectly inferred rather than directly perceived as indirect evidence.

8. Collateral facts- These are facts which affect the proof of facts in issue either because
they affect the credibility of a witness testifying to a fact in issue e.g. proving bias,
bad eyesight, or bad character or because they affect the admissibility of an item of
evidence tending to prove a fact in issue e.g. police conduct affecting the
voluntariness of a confession.
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 9. See section 2 facts in issue and Facts.
RELEVANCE AND ADMISSIBILITY OF EVIDENCE
Admissibility
Admissibility means a process by which a court will accept or reject a particular item of
evidence. This process depends on whether or not the items brought I evidence are relevant
and whether or not the items are excluded by law from being taken as evidence.

According to section 4 of the Evidence Act, evidence may be given in any suit or proceeding
of the existence or nonexistence of every fact in issue, and of such other facts as are hereafter
declared to be relevant under the Act.

Therefore, for the evidence to be admitted, it must first be relevant to the fact in issue. In
Uganda versus David Kamugisha [1988-90] HCB 77 Counsel for the accused person made
an application to tender in evidence of a letter purporting to be written by one of the
prosecution witness to the first accused person in order to contradict and discredit the
prosecution witness. The application arose when the prosecution witness denied that she was
not a girl friend of the first accused and that she could not write save for her surname.
Counsel for the accused intended to show court that the witness had a grudge with the
accused. The application was opposed and the issue as whether or not the letter was
admissible in evidence. The court held that the question of admissibility of a piece of
evidence be it oral or documentary basically depended on whether it was relevant to the issue
before court but other wise the court record would be filled with all sorts of evidence which
were not sufficiently relevant and these might tend to prolong trials unnecessarily because of
immaterial matters.

Note that for a fact to be admitted, it must relate to a fact in issue. This position was
explained in the case Struggle (U) Ltd versus Pan African Insurance Co. Limited (1990-
91) KALR 46. In this case, Counsel for the plaintiff led evidence led evidence to show that
the defendant Company did not exist at the commencement of the trial. The defendant
objected to this evidence on ground that the pertinent issue before court was whether the
Company owned the premises and therefore evidence to prove non-existence of the defendant
company was irrelevant. Court found that the issue of whether the defendant company had

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ceased to exist was not a fact in issue as it was not pleaded in the plaint. Therefore, evidence
to prove its non-existence was not admissible.

It should also be noted that the General principle is that once evidence is admissible, the
manner of its procurement does not matter. In other wards evidence may not be rejected on
grounds of its being illegally obtained. The case of Kuruma versus R [1955] EACA 54
discusses this principle. It was alleged that the police went to the house of the accused
without a search warrant. In the process of searching his premises, some incriminating
articles were found in his possession and they were obtained in evidence. The accused argued
on appeal that such evidence should not have been admitted because it was illegally obtained.
On appeal to the Privy Council, it was held that the method of obtaining evidence is
irrelevant. What was important is that evidence was obtained.

The rule as laid down in the in the case above cited has exceptions. e.g. It does not apply to
admissibility of confessions which must be voluntarily given and legally obtained.

Relevance
The discussion of relevance involves inter alia the study of the principles of Res Gestae. The
term Res Gestae is used to connote acts, declarations and circumstances constituting
accompanying or explaining a fact in issue. The literal meaning of the term is transaction. i.e
things that surrounds the happening of an event in question.

Note that Evidence may be given on two set of facts;

a) Facts in issue. i.e. those facts which are alleged by one party and denied by the other.
b) Facts relevant to the fact in issue. i.e. all other facts which are in the eyes of the law so
connected with or related to the facts in issue that they render the latter probable or
improbable or grow light upon them. The term relevance is some times used
unanimously with the term connection. e.g For a charge of murder, Murder becomes
the principle evidence and the fact in issue will be whether the accused committed
murder. The collateral issue will then be that the deceased died at certain time,
witness contending that he saw the accused with the deceased.

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Since the principle of relevance assumes that there is a transaction or principle fact, what
constitute Res Gestae are those other facts which are in relationship with the fact in issue.
Therefore, a transaction is a group of facts so connected together as to be referred to by a
single legal name e.g. a crime, a contract, or a wrong.

Every fact which is part of the same transaction as a fact in issue is deemed to be relevant to
the facts in issue although it may not be in issue and not part of the same transaction. In
exception circumstances, the fact may be excluded as hearsay.

See also Kinyatti V R [1976-1985] EA 234

In Uganda, the general principle of Res Gestae has been embodied in the evidence Act. See
Section 5-15, Evidence Act Cap 6.

a) Facts forming the same transactions

Section 5 of the Act provides that Facts which, though not in issue, are so connected
with a fact in issue as to form part of the same transaction are relevant, whether they
occurred at the same time and place or at different times and places. This principle
was discussed in the case of R v Kurji (1940) 7 EACA 58. In this case, the deceased
had been killed with a dagger. Evidence was admitted with facts that just prior to the
death of the deceased, the accused had assaulted the brother of the deceased with the
dagger. It was further alleged that the deceased was in a go down of the shop in which
his brother was working. That after wounding the brother, the accused said he was
going to finish the deceased. That he then proceeded to the go down with the dagger
and he was afterwards seen standing over the deceased with the dagger in his hands.
The issue for determination under res gestae was whether evidence of the attack on
the brother was admissible at the accused person’s trial for murder.
Court found that when the two acts of an accused person are so interwoven as to form
part of the same transaction, it was not proper to shut out evidence of one of the acts
even if it would involve introducing evidence of commission of another offence by
the accused. Court further held that where there were two occurrences so closely
interconnected, they had to be regarded as part of Res Gestae.

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The issue of facts forming the same transaction or connected was again illustrated in
the case of The Oriental Fire & General Assurance Limited versus Govinder &
Others [1969] EA 116. The 1st Respondent filed a proposal form that sought a
statutory 3rd Party cover policy issued in July 1966. In July 1966, the insured motor
vehicle driven by the 1st respondent was involved in an accident in which the 2 nd and
3rd respondents were injured. In February 1967, the Applicant company believing that
the 2nd and 3rd respondents were about to institute proceedings against the 1st
respondent for damages, which the Applicant company will be liable to pay filed a
plaint claiming that they were entitled to avoid the policy on ground that the 1 st
respondent had made a representation of fact false in material particular while
completing the proposal form for the cover policy. It was found as a fact that the 1 st
respondent had been involved in an accident in 1964 which he had not disclosed to
the insurance company and that in November 1964 he had made a statement after the
accident to the police. The issue was whether a statement made after the accident
forms part of res gestae. It was held that a statement of the 1 st respondent was not part
of res gestae in that it was not spontaneous or said at or immediately after the time of
the accident. The statement fell outside the main occurrence. In another case of R
versus Bird & Eye (1830) 4 C & P 386 the accused was charged with stealing
pickled pork, a bowl and some knives as well as a loaf of bread. It was alleged that he
went to the prosecutor’s shop took the pork and ran away with it. About two minutes
later, he returned and replaced the pork in the bowl and again went away with it.
About half an hour later, he returned and took the loaf of bread. The issue was
whether taking the loaf of bread formed part of the same transaction. It was held that
taking of the loaf of bread could not be given in evidence upon an indictment that the
accused taking of the pork, returning and then running off with the bowl must be
taken as one continuing transaction but half an hour was too long to admit that
construction. Court concluded that taking of a loaf of bread was a distinct offence
separate from taking of pork and a bowl.

There seems to be a general consensus that words, statements and declarations can
form part of res gestae. However, the following conditions must be fulfilled;
 The statement or declaration must relate to the main event and must explain
or elucidate upon the main event.
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  The statement must not be a mere narration of the past events but rather a
natural declaration growing out of the main event. For this matter to
consider the case of Ramadhan Ismail V R where a young girl was defiled
and she went crying straight to her home which was only two to three
houses away and she told her parents what had happened. She then led her
father to the place where she had been assaulted and pointed to the accused
saying that is the “Bwana” and the statement was sought to be adduced at
the trial as part of res gestae. Court concluded that the utterance could not
be considered as part of res gestae since it was a mere narration of the
passed event. The court noted that in matters of res gestae, time may be a
matter of utmost importance.

See also Thompson versus Trevanion. This was a civil action of assault
on the plaintiff’s wife and in this case the judge allowed what the wife said
immediately upon being assaulted before she had had time to devise any
thing to her own advantage.
The issue to these kinds of cases is whether the words in question do
accompany any physical acts so as to form part of the transaction or
whether the words subsequent to such acts and therefore mere narrative and
thus inadmissible.

 The statement or declaration must be a statement of fact and not an

expression of opinion.
 The statement or declaration must be contemporaneous with the
occurrence of the event. i.e. There should be proximity in terms of time
 The statement or declaration must be by a party who participated in the
transaction or who is the witness to the event in issue. In the case of Ismail
Ramadhan V R it was the further and not the victim who adduced that
evidence.

b) Facts which are the occasion, cause or effect of the fact in issue
Section 6 of the Act states that facts which are the occasion, the cause or the effect,
immediate or otherwise, of relevant facts, or facts in issue, or which constitute the
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state of things under which they happened, or which afforded an opportunity for their
occurrence or transaction are relevant. This principle was discussed in the case of R v
Brabin Khosla [1947] 14 EACA 80. The accused persons were convicted for corrupt
tendencies contrary to the Penal Code of Kenya. It was alleged that they obtained
money from one Hasham Kara in return for favours to him. At the trial evidence was
admitted under section 7 of the Indian Evidence Act with regard to previous
corruption transactions by the applicant with Hasham. Issue was whether previous
corruption acts of bribery were admissible.
Court held that since evidence of the previous corrupt transaction concerned Hasham
Kara, it was admissible for it showed the state of things under which the offence in
issue happened. There was a nexus between the previous similar offence and the
offence charged.
Note that facts or facts in issue which constitute the state of things under which they
happened or which afforded an opportunity of their occurrences or transaction are
relevant.

The same was also discussed in the case of Makindi v R [1952] EA 327. The
appellant appealed from conviction and sentence for Manslaughter of a small boy to
whom he was in loco Parentis (in place of a parent i.e a person or institution that
assumes parental rights and duties for a minor). It was alleged that the boy died as a
result of severe beating from the statements made by the appellant to police. It
appeared that the appellant intended to defend himself on ground that the deceased
was epileptic and that the injury and death were due to an accident caused by
epilepsy. At the trial prosecution tried to lead evidence of previous severe beating of
the deceased by the appellant in order to rebut his defense. The trial judge first
overruled the evidence but later allowed it. The issue was whether evidence of
previous beatings should have been admitted. Court held such evidence was
admissible in explanation and substantiation of the cause of death. The evidence also
showed the appellant ill will towards the deceased.

See: Harris V DPP [1952] AC 694

Moody & Ors v R [1957] EA 371

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c) Facts showing motive, Preparation and conduct
Section 7 (1) of the Act stipulates that any fact is relevant which shows or constitutes
a motive or preparation for any fact in issue or relevant fact. Motive is a mental state
and it is therefore normally derived from circumstances and relationships. It is what
influences a person to act in a particular manner. It may be fear of desire which brings
about a particular activity. This issue was considered in the case of Tinkamanyire &
Anr v Uganda [1988-90] HCB 5. The two appellants were tried and convicted by the
High Court of Uganda for kidnap with intent to murder. They appealed against the
conviction on ground among others that the trial judge erred in law in taking into
account the motive of the alleged offence and treating it s mens rea. It was held that
motive was irrelevant in criminal prosecution. However, it was always useful since
the person in his normal faculties would not commit a crime without a reason or
motive. That the existence of motive made it more likely that the accused person did
in fact commit the offence charged.
In that particular case, motive was that the appellants’ wanted to get the victim out of
their way as he was converting their church members to his own church.

The issue of motive is again discussed in the case of Charles Bitwire v Uganda
[1987] HCB 11. The appellant was convicted for murder. He appealed on ground
inter alia that prosecution had failed to establish any motive for killing on his part.
Court held that there was no legal requirement to prove motive but however, in a
weaker case, the absence of motive ought to be considered in favour of the accused
person because a sane person would not normally kill another for no reason at all. See
Franklin Byaruhanga V Uganda SC Cr. App No. 17/1993 where the supreme
Court of Uganda held that where motive is established, it becomes a relevant fact in
determining intention and that murderous intention flows more readily in a case were
a deadly weapon is used. And once motive is established coupled with other evidence,
defense of intoxication is negatived. In the case of Uganda v Paulo Muwanga (1989-
90) HCB 14, the accused was charged with interfering with the execution of the legal
process. It was alleged that the accused while Vice President and Minister of Defense
ordered the release of a suspect who had been implicated in banditry activities and
who was then on remand. No evidence was given so as to what motive would have
driven the accused to set the suspect free even though the suspect was seen in the
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company of the accused after the release. One of the issues was whether it was
relevant for the prosecution to prove existence of the motive on the part of the
accused. It was held that Ugandan Law does not require the prosecution to prove
motive in criminal cases. In the instant case, absence of any reason advanced by the
prosecution as to why the accused should have wished to see the suspect released
strengthened the accused person’s case.

Note; Motive cannot stand alone. It has to be accompanied with evidence. Motive
helps in explaining the offence i.e.

Section 7 (1) of the Act also provides for preparation. Note that facts constituting
preparation are relevant and admissible. Preparations are those plans to bring about
particular event. In criminal law, an offence goes through four distinctive stages that
are Intention, Preparation, Attempt and Execution of the act. The law usually
punishes at the 3rd and 4th stages but evidence of preparation is necessary as
constituting Res Gestae. Preparation involves putting together all preliquisite needed
to bring about a thing. It normally involves procurement or acquisition of articles of
mischief.
See Uganda versus Barikunda s/o Rwebanda [1985] HCB 12

Conduct
Section 7 (2) of the Act states that the conduct of any party, or of any agent to any
party, to any suit or proceeding, in reference to that suit or proceeding, or in reference
to any fact in issue in the suit or proceeding or relevant to it, and the conduct of any
person an offence against whom is the subject of any proceeding, is relevant, if that
conduct influences or is influenced by any fact in issue or relevant fact, and whether it
was previous or subsequent to the fact in issue or relevant fact.

Conduct is admissible for a number of reasons. It may be admissible to prove a

system or course of the conduct i.e. a state of affairs. It may also be used to rebut a
suggestion on the part of the accused that what occurred was an accident or a mistake.
It may as well be used to prove knowledge by the accused of some facts. This
evidence is relevant to show motive or intention, preparation. Conduct may include
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previous attempts to bring about an event and it would include declaration of intent or
threats used to show a system or state of things. In the case of Makindi V R (supra),
the conduct of previous beatings of the boy was admissible in so far as the motive of
the accused was concerned. In the case of Makin v. Attorney General for New
South Wales [1894] AC 57 894] AC 57, A husband and wife were charged with
murdering a child they were fostering and burying it in their backyard. During their
trial evidence of twelve other babies found buried in the backyards of their previous
residences was offered as evidence. Their appeal was based on whether this evidence
was admissible or whether it was unfairly prejudicial to their defense.
Lord Herschell held that the evidence, in this case, was admissible, however, as a
general rule evidence of a past similar event should not be admissible unless there are
exceptional circumstances.
It is undoubtedly not competent for the prosecution 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. On the other hand, the mere fact that the evidence adduced tends to
show the commission of other crimes does not render it inadmissible if it be relevant
to an issue before the jury, and it may be so relevant if it bears upon the question
whether the acts alleged to constitute the crime charged in the indictment were
designed or accidental, or to rebut a defence which would otherwise be open to the
accused. The statement of these general principles is easy, but it is obvious that it may
often be very difficult to draw the line and to decide whether a particular piece of
evidence is on the one side or the other.'
Evidence of similar facts can only be admitted if it is both relevant and probative to a
degree that it substantially outweighs the unfair prejudicial effect.

In the case of Livingstone Kakooza V Uganda SC Cr. App No. 17/1993, the
appellant was indicted for murder and convicted for Manslaughter. The trial judge
found that the conduct of the accused before, during and after the commission of the
offence was shocking. On the basis of this evidence, the judge pointed out that the
accused appeared to be an ardent type and therefore convicted him. On appeal to the
Supreme Court, it was found that the trial Judge was not justified in concluding that
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from the conduct of the appellant. It was held further that the fact that the accused was
previously arrested on suspicion of having been involved in the death of his father but
later released was not sufficient material upon which to conclude that he was an
ardent person.

See; R v Ball [1911] AC 47. The defendants who were brother and sister were
charged for incest. Evidence was tendered that the female accused had earlier given
birth to the child describing herself as the mother while the male defendant the father.
Evidence was also laid of the previous acts where the male accused was alleged to
have bought a house to which he took his sister as his wife and lived together as
husband and wife for about 16 months. Further evidence also indicated that the house
had only one furnished bed room with one double bed and that it was shared by the
two accused persons. The two were convicted upon this evidence. The court of
appeal quashed the conviction on ground that the evidence objected to was not in the
first instance admissible and that nothing had occurred in conduct of their defense to
render it admissible as evidence in rebuttal. On further appeal by the State, the issue
was whether evidence of the previous conduct of the accused was admissible.
Court held that evidence of previous conduct could be admissible to show the
relationship of two parties and to show intent, guilt, and knowledge, design system or
rebut the defense of accident, mistake or reasonable honest mistake. Court further
found that the evidence objected to in this case was admissible for the object of that
evidence was to establish that the two accused persons had a guilt passion towards
each other and to rebut the evidence of innocent association of brother and sister.

In another case of R v Smith the accused was charged with murdering a woman. It
was alleged that he drowned her in the birth tab in the lodge were they were staying. It
was also shown that this was done shortly after the man had gone through a form of
marriage with the deceased and after she had made financial arrangements in his
favour. The accused claimed that the woman had died as a result of an epileptic fit
and therefore it was an accident. In order to rebut this evidence, prosecution applied
and was allowed to adduce evidence which connected the accused with the deaths of
two other women who had also been drowned in their bath tab after the accused had
gone through forms of marriages with each of them in turn and after each had done
18
financial arrangements in his favours. The issue was whether the judge had rightly
admitted the evidence of the death of the other women. It was held that evidence of
previous acts is admissible to show the guilt intent of the accused and to rebut the
defense of accident. Court noted that the challenged evidence was admissible to show
that what happened in the case of first women was not an accident as well as to show
the intention with which the accused committed murder.

Read; Uganda v Abdul Sabani [1974] HCB 12

Subsequent Conduct
Subsequent conduct is also provided for under section 7 (1). It simply refers to the
way the person behaves after the transaction. It may be used to implicate a person as
evidence of the state of mind if that person committed the act in question. In some
cases silence by the accused may amount to conduct that is admissible. Like wise,
giving false statement or evasive answers may be used as conduct to implicate the
accused. Subsequent conduct is very important especially in rape and allied offence
and in this case, the conduct of the complainant will also act under scrutiny.

In the case of Lobo v R (1922) 10 KLR 55, It was held that complaints by victims of
rape and allied offences if made at the first reasonable opportunity after the offence,
are admissible since the complaint is indicative of the complainant’s state of mind and
therefore complainant’s conduct although not establishing the acts complained of. In
the earlier case of R v Camelleri [1922] 2 KB 122, It was held that such complaints
were evidence of consistence of conduct. In this case, a male accused was charged
with gross indecency with a boy of 15 years. The Judge admitted particular acts in the
complaint made by the boy to his parents. The Judge found that these were admitted
not as evidence of facts complained of but to show a consistence of his conduct in his
testimony in the witness box. Such complaints will also be admissible as negativing
consent where the act of consent is the issue. It should be noted that the admissibility
of evidence of a previous similar complaint against the defendant is not confined to
cases where consent is the issue.

19
 In a Ugandan case of Uganda v Simon Onen [1991] HCB 7, the accused was
charged with murder and was later sentenced to minor offence of manslaughter. The
accused was one evening sleeping at his home when the deceased and two others
woke him up. In his defense, he testified that they began beating him and he fought
back in self defense. He claimed to have got a stick with which he hit the deceased
once. He claimed that the panga in the deceased’s hand then cut his right leg. The
deceased’s body was later discovered dragged a few meters from the accused court
yard with several parts on the right leg cut. The deceased’s shirt was removed and
drags mud seen from the accused person’s court yard where the body was found. The
accused was however no where to be found but re-appeared two months later and
reported himself to police. He claimed that he disappeared out of fear of the local
militia because the deceased was a local leader and that he would be man-handled by
the militia. The issue was whether conduct of the accused in running away after the
commission of the offence was admissible. Court held that the conduct of the suspect
after commission of an offence can infer guilt. Court further found that the conduct of
the accused in running away into hiding was not a conduct of an innocent man.

See Uganda v Kabandize [1982] HCB 94 where the accused was indicted for
murder. It was alleged that he stabbed the deceased and went to a swamp below his
house. He began to move up and down in a restless manner. He was later arrested
from the swamp by the chief to whom he showed a spear used in killing the deceased.
Court held that the conduct of the accused immediately after the death of the deceased
of running away from the scene of the crime and of being in a restless mood in the
swamp clearly showed the guilt mind.

d) Explanatory and Introductory facts

Section 8 of the Act states that facts necessary to explain or introduce a fact in issue
or relevant fact, or which support or rebut an inference suggested by a fact in issue or
relevant fact, or which establish the identity of any thing or person whose identity is
relevant, or fix the time or place at which any fact in issue or relevant fact happened,
or which show the relation of parties by whom any such fact was transacted, are
relevant insofar as they are necessary for that purpose. Section 9 introduces about five
different categories of Res Gestae. i.e.
20
 i) Facts which explain or introduce a fact in issue.
ii) Facts which support or rebut an inference suggested by a fact in issue.
iii) Facts that establish the identity of any thing or person if identity is in issue.
iv) Facts that fix the time and place at which the relevant issue may have
happened.
v) Facts that show relationship of parties.

i) Facts which explain or introduce a fact in issue

These are facts that have an element of showing how a particular fact was brought
about and they are facts which are related to other facts of res gestae. Explaining
could be by way of preparation. This particular issue was discussed in Kayambo S/O
Kitambo the accused was charged with uttering a false document. Evidence was
admitted by the trial judge of the presentation of the forged document in the previous
month as tending to establish his identity as well as explain circumstances in which
the offence was committed. On appeal it was held that in so doing the trial judge had
erred since although this evidence was admissible under the law, it should not have
been admitted in this case in lieu of lapse of time between the two transactions.

ii) Facts which support or rebut an inference

A fact in issue may raise certain presumptions. Any fact that contradicts or support
such a conclusion is relevant. In the case of Abdu Kyagulanyi v Uganda [1988-90]
HCB16, the appellant was convicted of receiving and retaining stolen property and
sentenced to 12 months imprisonment. The accused was a licensed trader of goats. In
his absence two other accused persons brought 10 goats to his home. He denied any
knowledge of stealing or receiving the stolen goats. He claimed that when the goats
were brought to his home, he had gone to Kampala. The trial Magistrate found as a
fact that on the day the goats were stolen, the appellant had not gone to Kampala as
there was no evidence to prove that the 2 nd and 3rd accused had any possession of
goats, they were acquitted. The appellant was convicted on the basis of the doctrine of
recent possession. The issue was whether there were co-existing circumstances which
would weaken the inference of the accused person’s guilt of receiving stolen goods
with guilty knowledge. In Uganda v Richard Baguma [1988-90] HCB 74 the
accused was indicted for aggravated robbery, kidnap with intent to murder.
21
Prosecution alleged that on the day the deceased met his death; the accused together
with others went to the house of the deceased and took him away. His body was found
the next day with bullet wounds. Prosecution witnesses identified the accused in the
manner of their dressing by aid of moonlight. It was held that where evidence is
circumstantial, in order to justify an inference of guilt, the inculpatory (imputing
blame; criminatory; compromising; implicating) facts must be incompatible with the
innocence of the accused and incapable of explanation upon any other reasonable
hypotheses other than that of guilt. In the circumstances relied on in this case to prove
that a deadly weapon was used during the commission of the robbery did not point
conclusively to the fact that the abduction were responsible to subsequent murder of
the deceased. See Uganda v Kasya [1988-90] HCB 48 where the accused indicted
for murder. In the evening preceding the death of the deceased, the accused had been
seen in the company of the deceased. Evidence was adduced for prosecution that the
deceased’s body was found half a mile from the accused person’s place of residence
and the deceased had first been raped before being strangled. Two days later,
graduated tax tickets bearing the accused person’s names were allegedly found some
meters from the scene of the crime. On arresting the accused, he was found putting on
blood stained trousers. The accused said that he had parted with the deceased and
went to some drinking place. Court held that evidence against the accused was purely
circumstantial and did not irresistibly point to the guilt of the accused that there were
other co-existing circumstances which would weaken or destroy the inference. In
Uganda v Yonasani Balinda [1992-93] HCB 24, the accused was indicted for
kidnap with intent to murder. He was indicted for murder in the alternative. He was
convicted by the High court. The evidence of prosecution showed that in October
1980 while the deceased served food and drinks at the last funeral rites, he was called
away by the accused person and taken towards a nearby trading center. Both accused
and deceased were followed by a group of people. At the road side the accused
together with the group attacked the deceased hitting him on the head, back and parts
of the body with sticks. The group was also armed with pangas and knives. The
accused person put up the defense of alibi. No medical evidence was adduced. Court
found that to establish a cause of death partly on circumstantial evidence, the court
had to be sure that there were no other existing circumstances which would weaken or
destroy the inference. In Richard Ogola v Uganda, court noted that where the whole
22
 prosecution case was based on circumstantial evidence, Court must in dealing with it
carefully test each link in the chain and if in the end one is not led to irresistible
conclusion of accused person’s guilt, then the whole chain must be rejected and the
accused be acquitted. Court further held that courts are not concerned with suspicion
however strong.

iii) Facts that establish the identity of any thing or person if identity is in issue.
Any facts that shows the identity of any thing is a relevant fact. Identification of a
thing or a person is an expression of opinion that the thing or person resembles
another thing or person so much that it is likely to be the same thing or person. In
other wards, the question of compulsion and identification is a quality of sameness. If
a crime is committed, identity of a person who committed it must be established and
the suspect must be produced as on who participated in the crime. This is achieved
through the process of identification. That process of identification entails the
following;
1. A person identifying must have seen or observed the accused.
2. That the identifying person must have had a settled impression in the mind.
3. The mental state a person has at the time of identification must be the same
as to one when he saw the accused. It must not be tainted by other facts or
opinion of 3rd parties.
4. The time taken in identifying the accused is important i.e. length of time.
5. There should be opportunity allowing proper identification i.e. length of
time, the distance between the identifier and identified,
6. Identification involves pointing out characteristics of a thing being identified
e.g. the way you dress, height, age, sex, size e.t.c. In the case of Kayambo
S/O Kitambo, when the question of identity is involved, the test should not
only be similarity of collateral facts to the facts in issue but also their
proximity in point of time. In the case of Kwijuka Misaki and Iga Jackson
v Uganda SC Cr. App. No. 18 of 2003 Unreported, The appellants broke
into the house of a one Francis Kuteesa, now a deceased, and demanded
money from him which his wife PW1 gave them. A2 stabbed the deceased
with a knife killing him instantly. She added them more money after further
threats. The whole incident lasted one hour, there were electric lights in the
23
house though they were dim, and the robbers flashed a torch. The accused
later fled but were arrested in the morning, six miles away from the scene of
the robbery. At trial, they set up an alibi, which the learned trial Judge
rejected. Their appeal to the Court of Appeal was also rejected, hence the
appeal to the Supreme Court on grounds mainly that the courts below relied
on unsatisfactory circumstantial evidence of a single identifying witness and
also failed to consider their alibi. Court held that Prosecution Witness No.1
had ample opportunity of observing the appellants. Though she did not know
the appellants before, the confrontation lasted for an hour long enough to
enable her recognize them. They were talking to her, demanding money and
threatening her to meet the same fate as her husband. It would be impossible
to talk to them without observing their faces. In another case of Lubega
Gerald v Uganda SC. Cr. App. No. 40 of 2001, On the 18/11/98 between
7:30 and 8:30 pm, the appellant approached the home of the deceased who he
found preparing a meal in her kitchen. The appellant entered the kitchen
holding what appeared to be a calabash and he immediately threw it in the
fire place. It exploded and petrol splashed on a tadooba (wick lamp) the
deceased was holding. The deceased’s clothes caught fire and she got burnt.
The kitchen was six by six meters small and it was lit by a big tadooba and
the deceased was standing 2-3 meters from the appellant. The appellant was
well known to the deceased and her children as he was their uncle and used
to go to their home. The children raised an alarm whereupon the appellant
ran away. The deceased died a few days later after making a dying
declaration as evidence implicating the appellant. The appellant was charged
with murder. At trial, the learned trial Judge found one of the two children
competent to give sworn evidence while the other was fit to give unsworn
evidence, which he believed to be truthful. In their evidence, they identified
the appellant at the scene of crime. In his defense, the appellant set up an
alibi, that on the material date, he left his home at 4:00 pm, went to attend a
football match up to 6:00 pm and went to the bar, where his defense
witnesses met him at 9:00 pm. The learned trial Judge did not believe his
alibi and convicted him. He appealed to the court of appeal which also
dismissed the appeal. He then appealed to the Supreme Court on grounds that
24
the he was not correctly identified. Court found that The conditions were
favorable for the correct identification of the appellant by the two eye-
witnesses. They could not have been mistaken in identification of the attacker
of the deceased as the appellant. Having regard to the size if the kitchen, the
source of light was sufficient to enable PW2 to identify a person he knew
before and had seen during the day.

Identification parade
These are normally conducted by police during investigations in an attempt
to identify the accused or suspect with the offence for which he is charged.
The purpose is to find out from the witness who claims to have seen the
accused or suspect whether that is the person he or she saw previously at the
scene of crime and the witness must have identified the suspect previously
otherwise the parade would be of no evidential value. The court has approved
the following to govern identification parades;
i The accused must always be informed of the parade and may have an
advocate or a friend present when parade is taking place.
ii The process must not be conducted by the officer who is in charge of
investigation though he may be present during the parade.
iii The witness must not see the accused or suspect before the parade.
iv The accused or suspect must be placed among at least eight persons as
far as possible of similar age, height, general appearance of class of life
as the accused.
v The accused should be allowed to take any position that he chooses
and should be allowed to change his position after each identification
witness if he so desires.
vi Like wise, if the witness so desires he or she should be able to see the
accused walk. However, as a precautionary measure, the whole parade
should be asked to do this.
vii Care must be exercised to see that the witnesses are not allowed to
communicate to each other before and after the parade.
viii During the identification, the witness should touch the person he or she
identifies. However, if a man is identifying a woman, he should not be
25
 allowed to touch her. On the other hand, if it is a woman identifying a
man, she should touch him. In Uganda touching is impractical and the
police usually use numbers.
ix At the preparation of the parade or during the its conduct, the accused
should be asked if he is satisfied that the parade has been conducted in
a fair manner. His reply should be noted down.
x Before the identification, the witness should not be shown the
photographs of the suspect or told to pick out a particular person. And
at all times the parade should be conducted with great fairness
otherwise its value as identification evidence will depreciate
considerably. Read Sentale v Uganda [1968] EA 365 at 369, R v
Mwango s/o Manaa (1936) EACA 29, Simon Musoke v R [1958]
EA 715.
Note that the purpose of identification parade is to avoid wrong conviction. In the case of
Moses Kasana v Uganda [1988-90] HCB 3, court noted that evidence of identification
parade is of no value if the witness has known the accused before. The parade should only be
to enable a witness who did not know the suspect before or who ever saw him after the
offence to confirm his identification.
In the case of Abdalla Nabulere v Uganda, three appellants were convicted of murder of the
deceased who was a former wife of the 3 rd accused. It was alleged that the appellants entered
the deceased’s hut at night. They hit her on the head and shoulders killing her instantly. At the
trial the principal witness who lived with the deceased in the same room and was present at
the time testified that she saw the appellant cutting the deceased and running out the
verandah. That upon the witness making an alarm, the appellants immediately followed her.
The 1st appellant hit her on the left upper arm which was later amputated and the 2 nd appellant
hit her on the other side. The appellants then ran away. It was admitted that the hut was dark
but the prosecution witness N0. 1 knew all the accused before the attack and also saw them
outside the verandah under bright moonlight. The alarm was answered by Prosecution
witness 3 and 4 who were neighbors of the deceased. Upon arrival, PW1 told them what had
taken place which they repeated at the trial although they gave different versions of it. The
other witness who went to the scene also gave contradictory evidence. The issue was whether
PW1’s identification evidence was admissible. Court held that a conviction based on visual
identification evidence of a single witness invariably causes a degree of uneasiness because
26
such evidence can give rise to a miscarriage of justice. There is always a possibility that a
witness though honest maybe mistaken. For this reason, courts have over the years developed
rules of practice to minimize the dangers of wrongful conviction thus;

1. Testimony of a single witness regarding identification must be taken with great care.
2. The need for caution is must be taken when it is known that conditions favouring
correct identification were difficult.
3. Where conditions were difficult, other evidence pointing to guilt is needed before a
conviction can be upheld. Otherwise, subject to well-known exceptions, it is lawful to
convict on the identification of a single witness so long as a judge addresses him or
herself to the danger of basing a conviction on such evidence.
In Abdalla’s case where a case against the accused depends wholly or substantially on
the correctness of one or more identifications of the accused, the Judge should warn
him or herself before convicting the accused because there is a possibility that the
witness was could have been mistaken. The Judge should examine the circumstances
in which the identification was made particularly the length of time the accused was
under observation, the distance between the witness and the accused, the light
available and the familiarity of the witness with the accused and that all factors got
the authority of identification evidence.
When the quality of identification is poor, i.e. when it depends on the fleeting glance
all a long observation made in difficult conditions or if for instance witness did not
know the accused before and saw him for the first time in a dark or badly lit room, the
situation is very different. That in such case, court should look for other evidence
which goes to support the correctness of identification before convicting on that
evidence alone.

Although as a general rule testimony of a single witness regarding identification must

be tested with great care, where the quality of identification is good, a court can safely
convict even though there is no other evidence to support the identification provided
that the court adequately warns itself of the special need for caution.

iv) Facts that show relationship of parties (Common Intention).

27
Section 9 of the Act states that where there is reasonable ground to believe that two or
more persons have conspired together to commit an offence or an actionable wrong,
anything said, done or written by any one of those persons in reference to their
common intention, after the time when that intention was first entertained by any one
of them, is a relevant fact as against each of the persons believed to be so conspiring,
as well as for the purpose of proving the existence of the conspiracy and for the
purpose of showing that any such person was a party to it.

Section 9 relates to conspiracies and presupposes the existence of at least two or more
peoples. In criminal cases, a person cannot ordinarily be made responsible for the acts
of others unless they have been instigated by him or her or done with his or her
knowledge or consent.

In civil cases, the principal is only bound by the agent if the latter had implied or
express authority of him.

Under section 9, it is established that if there was a common intention to commit a

crime or an actionable wrong, then the actions of one will be presumed to be the acts
of another. Common intention shows two things;
1. That Conspiracy existed
2. That the person was party to the conspiracy.
Before evidence of common intention can be admitted, there must be reason to
believe that there was a conspiracy and that the accused persons are members of
that conspiracy.

Conspiracy therefore consists of a combination or agreements between two or

more persons to do unlawful act by unlawful means. Thus the two or more
persons conspires together to commit an offence and each is regarded as an agent
of the other and just as the principal is liable for the acts of the agent. Therefore,
each conspirator is liable for what is done by his fellow conspirator in furtherance
of a common intention. The rule of common intention is found in the identity of
interest existing between parties.

28
In R v Blake Tyre (1884) GB 126, a customs officer and an agent were accused
of conspiracy to pass goods without paying the full dues. In order to carry out the
conspiracy, Tyre made false entries in the books and there was evidence that the
two had agreed their fraud would be facilitated through the said scheme. The issue
was whether false entries made by Tyre would be used to accuse Blake. Court
held that in so far as they had agreed, whatever was done by one of them in the
furtherance of the conspiracy could be used as evidence against the other.

A question has arisen whether its only human persons who can conspire or
companies can form a common intention. In R v IRC Haulage (1944) 1 KB 551,
Appellant company was charged with 10 other defendants with common law
conspiracy to defraud. Preliminary objection was taken on behalf of the company
that an indictment alleging common law conspiracy to defraud could not lay
against a limited company. Court found that where in a particular case there is
evidence that the criminal acts of an agent including his or her state of mind,
knowledge, or belief are the acts of the company, then the company is liable. In
this case, the acts of the managing director were acts of the company and the fraud
of that person was the fraud of the company. In R v Mc Donnell (1966) 1 QB
233, at all material times the defendant was the director and sole person in each of
the two companies and was responsible for their acts. He was charged with an
indictment containing 10 counts and this included conspiracy to defraud creditors.
Court held that the basis of conspiracy was the acting in concert of two or more
persons and that although a company was a separate legal entity, were the sole
responsible person was the defendant himself, there could be no two or more
persons or minds. Therefore, there could be no conspiracy between the defendants
and the company. Conspiracy charges could not be sustained.

Note that section 9 and the cases provides for conspiracy and common intention.
Common intention necessary in charges of conspiracy. Evidence law requires
evidential circumstances like common intention.

How is common intention ascertained? In Birikadde v Uganda [1986] HCB 6,

court held that in order to prove common intention, its necessary to prove prior
29
 agreement between the assailants. It’s sufficient to infer common intention from
their actions. That common Intention could be inferred from the presence of the
appellant, his actions, and his omission to disassociate himself from the attack.
In Uganda v Paddy Kalenzi the accused was indicted with kidnap with intent to
murder. The evidence was that on a certain market day, the deceased was arrested
by the soldiers at the instigation of the accused who claimed that the deceased was
a bandit. He pointed him out to the soldiers, he was put on an army vehicle and
was never seen alive again. The accused set up the defense of alibi. The issue was
whether the accused had a common intention with the soldiers. It was held that its
right law that in order to prove common intention, its not necessary to prove prior
arrangements with assailants. It’s sufficient if their intention can be inferred from
their actions. In this case it was enough that the accused had a common intention
with the assailants and that his actions especially in pointing out the deceased to
the assailants would help the inference that the accused had a common intention in
murdering or exposing the deceased to the danger of being murdered. In Donozio
v Uganda, the accused appealed from conviction on the ground that the learned
trial judge did not address himself with the need to establish common intention
between the appellant and the gang in which he was seen. Court held that common
intention may be inferred from the integrated actions of the group or gang. It’s trite
law that when two or more person with a common intention carry out an unlawful
purpose, each of them is held responsible for the acts of each and that the judge
should have directed himself to this.

e) Inconsistencies and contradictions in evidence

Section 10 of the Act provides that facts not otherwise relevant are relevant if they are
inconsistent with any fact in issue or relevant fact or if by themselves or in connection
with other facts they make the existence or nonexistence of any fact in issue or
relevant fact highly probable or improbable. Therefore, any fact which either
disproves or tends to prove a thing a thing or charge is relevant.

Alibi
The admissibility of inconsistencies in each case must depend on how near the
connection is of the facts sought to be proved with the facts in issue. i.e. What degree
30
do they render facts in issue probable or improbable when taken with other facts in
the case and to what extent would the admission of the evidence be inconsistent with
other principles of relevance. Evidence of inconsistencies can be derived from a
number of factors.

Consider physical inconsistencies as to the facts of nature. In Uganda v Dusman

Sabuni [1981] HCB 1 Court considered the alibi put up by Sabuni. Court noted that
it’s established law in Uganda that when an accused person sets up an alibi which is
technically a defense, he does not assume any responsibility of proving it. Prosecution
must negative alibi by the evidence in rebuttal. If on full consideration of all evidence
before court it is found that the alibi put up is sound, and that it has not been
negatived, then the prosecution would not have proved their case beyond reasonable
doubt and accused will be acquitted. If on the other hand prosecution has negatived
alibi, courts must still consider whether case of the prosecution has been proved to
court’s satisfaction. Court noted further that if in consideration of the whole evidence
it is found that the alibi is true, or that the court is left in doubt as to whether it’s true,
or untrue, then court is bound to give the benefit of doubt to the accused and must be
acquitted. The Burden is on prosecution to disprove alibi. See Rwamwaro v Uganda
[1988-90] HCB 70,
Read Uganda v Ejabu & Another [1982] HCB 82,

Inconsistencies and Contradictions in evidence

Under the section, the general rule is that if inconsistencies are so grave as to go to the
root of the evidence, then the evidence must be rejected. But if they are of minor
nature, then they may be disregarded and court can rely on that evidence. In Uganda
v Edirisa Ssali & Others [1991] HCB 40, Court noted that contradictions and
inconsistencies between the complainant’s evidence in court and his previous
statement to police could not be said to be minor. They were so contradictory,
inconsistent and confusing that it was impossible to say that he was talking about the
same thing. No reasonable tribunal could act upon that Kind of independence. In
Uganda v Ngirabakunzi & Others [1988-90] HCB 40, The law on inconsistencies
and discrepancies in prosecution case was that grave inconsistencies unless
satisfactorily explained would usually results in evidence of witness being rejected
31
but minor inconsistencies would not have that effect unless the Judge felt that the
evidence pointed to deliberate untruthfulness.

Note that under section 11 of the Act; in suits in which damages are claimed, any fact
which will enable the court to determine the amount of damages which ought to be
awarded is relevant.

State of mind or bodily feelings

Under section 13 of the Act, facts showing the existence of any state of mind, such as
intention, knowledge, good faith, negligence, rashness, ill will or good will towards
any particular person, or showing the existence of any state of body or bodily feeling,
are relevant, when the existence of any such state of mind or body or bodily feeling is
in issue or relevant. Note that a person may bring about particular acts or may commit
particular acts because of the state of mind. The mental element in crime, tort, and
other legal conception is a fact in issue. In other wards, for some times the presence of
mens rea is a pre-liquisite while in some torts, negligence has to be proved or
knowledge. Under the section, the state of mind includes the intention, knowledge,
good or bad faith, rashness or negligence.

Explanation No. 1 under section 13, a fact relevant as showing the existence of a
relevant state of mind must show that the state of mind exists, not generally, but in
reference to the particular matter in question. The principle upon which this evidence
is admissible is that where there is a question as to knowledge, intention, motive or
any other bodily or mental state, evidence of such knowledge, intention, motive or
bodily or mental state are admissible even though they involve the proof of other
crimes.

Explanation No. 2 under section 13, says, where upon the trial of a person accused of
an offence, the previous commission by the accused of an offence is relevant within
the meaning of this section, the previous conviction of that person shall also be a
relevant fact. This evidence is admissible not to show that because the accused has
committed one crime, therefore it will be likely that he committed another offence.
The evidence is to establish the animus (Animating spirit; intention; temper) or
32
 intention of the act and rebut obvious defenses of ignorance, accidents, mistake or
other innocent state of mind. However, courts have always emphasized that there is
need for caution not to extend the operation of the section to other cases where the
question of guilt or innocence depends upon actual facts and not upon state of ones
mind or feelings. In Akrabi v R (1956) 23 EACA 512 the accused was charged with
use of criminal force with intent to outrage modesty of two boys. Evidence was
admitted on the previous occasion, the accused had done similar acts of the other
boys. Court held that the evidence could be admissible on showing the intention of the
accused.

Illustrations to the explanations in the Act

1. A is accused of receiving stolen goods knowing them to be stolen; it is proved
that he was in possession of a particular stolen article.
The fact that at the same time, he was in possession of many other stolen articles
is relevant, as tending to show that he knew each and all of the articles off which
he was in possession to be stolen.
2. A is accused of fraudulently delivering to another person a counterfeit coin which,
at the time when he delivered it, he know to be counterfeit.
The fact that, at the time of its delivery, A was possessed of a number of other
pieces of counterfeit is relevant.
The fact that A had been previously convicted of delivering to another person as
genuine a counterfeit coin knowing it to be counterfeit is relevant.
3. A sues B for damage done by a dog of B’s which knew to be ferocious.
The facts that the dog had previously bitten X, Y and Z, and that they had made
complaints to B, are relevant.
Evidence of series of similar occurrences
Section 14 of the Act provides that when there is a question of whether an act was accidental
or intentional, or done with a particular knowledge or intention, the fact that such act formed
part of a series of similar occurrences, in each of which the person doing the act was
concerned, is relevant.

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As a general rule regarding similar fact, evidence is exclusionary i.e. it excludes evidence of
past similar acts that is it is adduced to show a thing; identification and for purposes of
negativing defenses.

The general rule was laid down by the Privy Council in the case of Makindi v A.G NSW
(supra), where court said that it is undoubtly not confident for prosecution to adduce
evidence tending to show that the accused has been guilty of other criminal acts other than
those covered by the indictment for purposes of leading to the conclusion that the accused is
the person from his criminal conduct or character to have committed the offence for which he
is being tried. Court in that case held that evidence of similar facts generally is inadmissible
although there are exceptions to the general rule.

Where it is uncertain whether an act was done with a guilty knowledge or intention or
whether it was innocent or accidental, proof that it formed part of the series of similar acts
raises the presumption that the act in question and the others together forming a series were
done upon a system and that they were therefore not innocent or accidental.

It is not necessary that all acts form part of or one transaction but they should be part of the
series of similar occurrences. The evidence is intended to prove that the acts were not
accidental but of the design.

In addition, there has to be a common link between the facts to be proved and evidential facts
otherwise, if there is no such linkage, then they cannot form series.

Evidence of similar occurrence may be adduced in the following circumstances;

a. To prove that the act was not accidental. In Makin v. Attorney General for New
South Wales [1894] AC 57 a husband and wife were charged with murdering a child
they were fostering and burying it in their backyard. During their trial evidence of
twelve other babies found buried in the backyards of their previous residences was
offered as evidence.

The appeal was based on whether this evidence was admissible or whether it was
unfairly prejudicial to their defence.

34
 Lord Herschell held that the evidence, in this case, was admissible, however, as a
general rule evidence of a past similar event should not be admissible unless there are
exceptional circumstances.

“It is undoubtedly not competent for the prosecution 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. On the other hand, the
mere fact that the evidence adduced tends to show the commission of other
crimes does not render it inadmissible if it be relevant to an issue before the
jury, and it may be so relevant if it bears upon the question whether the acts
alleged to constitute the crime charged in the indictment were designed or
accidental, or to rebut a defence which would otherwise be open to the
accused. The statement of these general principles is easy, but it is obvious
that it may often be very difficult to draw the line and to decide whether a
particular piece of evidence is on the one side or the other.”

In Mood Music Publishing Co. Ltd. V. De Wolfe Ltd. [1970 M. No. 6074]

The plaintiffs alleged breach of copyright case involving music and sought to have
admitted in evidence similar fact evidence showing that the defendants had published
music resembling material protected by copyright in the past. The defendant apealed.

Held: Lord Denning MR held:

“The admissibility of evidence as to ‘similar facts’ has been much considered

in the criminal law. Some of them have reached the highest tribunal, the latest
of them being Reg v Boardman [1975] AC 421. The criminal courts have been
very careful not to admit such evidence unless its probative value is so strong
that it should be received in the interests of justice: and its admission will not
operate unfairly to the accused. In civil cases the courts have followed a
similar line but have not been so chary of admitting it. In civil cases the courts
will admit evidence of similar facts if it is logically probative, that is, if it is
logically relevant in determining the matter which is in issue: provided that it
is not oppressive or unfair to the other side: and also that the other side has
fair notice of it and is able to deal with it”.
b. To show causation. i.e. how a state of thing was brought about. In Harris V DPP
[1952] AC 694 a series of thefts having common characteristics occurred in an office
in an enclosed market at times when the gates were shut and on occasions where the
accused police officer was on duty in the market the precise time of only one of those

35
breaking was known and the accused had been found in the immediate vicinity. The
accused was charged with eight breaking thefts but acquitted on seven counts and
convicted on the eighth.

The issue on appeal was whether the seven counts could have been admitted/proved.

It was held that as regards the eighth breaking evidence of the previous seven
breakings would have to be excluded because they occurred at a time when it hadn’t
been proved that he was near the office.

The similar occurrence in Harris case was based on suspicion that and there is always
a need to prove. The fact that Harris was being charged with another offence, it could
not be used as evidence in the current one as the previous one was not yet decided.

Court noted that past similar occurrences may be adduced to prove a system followed
by the accused. It may be adduced to rebut the defense of accident or mistake,
innocent intention.

In R v Scarrott [1977] 3 WLR 629 the appellant was charged in an indictment

containing several counts of various offences committed against the boys. He applied
to severe the indictment claiming that a multiple count would create overwhelming
prejudice against him and that similar facts evidence was not admissible to
corroborate various counts. The application was denied and the boys gave evidence
which the trial judge ruled to be strikingly similar and that it was therefore admissible
in corroborating the evidence against the accused.

On appeal the issue was whether similar fact evidence was admissible in
corroboration.

Court held that the test of admissibility of similar fact evidence was one of striking
similarity. That such evidence had to reveal an underlying linkage between matters
and the allegation against the accused. Its admissibility depended not on whether it
was capable of corroborating the evidence of the victim or accomplice but on its
positive probative value i.e. on whether logically considered, it possessed a probative
value sufficient to assist court to determine whether the offence charged against the
accused had been committed by him.

Its corroborative capacity was a consequence of its probative value and not vise versa.
The court relied on Boardman v DPP [1974] 3 AllER 887 where court set down the
following principles;

 That whether or not evidence is relevant and admissible against the accused is
solely a question of law. That the test must be whether the evidence is capable
of tending to persuade a reasonable court of the accused person’s guilt on some
grounds other than his bad character and the position to commit the crime with
which he is charged.
36
  That the evidence which prove merely that the accused has committed the
crime in the past and is therefore capable to commit the crime charged is
clearly inadmissible.

 That it has however never been doubted if the crime charged is committed in a
uniquely or strikingly similar to other crimes committed by the accused, the
manner in which the other crimes are committed maybe evidence of which
court could reasonable conclude that the accused was guilty of the crime
charged. But similarity will have to be so unique or strike that common sense
makes it inexplicable from coincidence.

ADMISSIONS AND CONFESSION

Provided for under sections 16 to 23 of the Evidence Act

Section 16 defines an admission as a statement, oral or documentary, which suggests any

inference as to any fact in issue or relevant fact, and which is made by any of the persons, and
in the circumstances.

This definition may not be conclusive. According to Phipson on Evidence, 9th edition, p.30,
he defines admissions as,

“...in civil cases, statements made out of court by parties to proceedings…are

admissions and they are admissible against but not in favour of such a party to prove
the truth of the facts stated.”

The general rule of admissions is that they are admissible against the party who makes them
and they should not be in favour of the party who makes them.

Categories of admissions:

1. Those made in contemplation of or at the beginning of trial;

These are receivable against the maker as a waiver of proof, and when brought to the
attention of the court, judgment can be entered against the party who made the
admissions or on whose behalf they were made.

2. Those made without a view to the trial.

The statement have to be proven by the party who alleges that such statements were actually
made. Thus, their mere presentation is inadequate.

It is important to note that a statement containing an admission has to be tendered in full and
if the statement contains some parts which are favourable to the maker and those against his
case can therefore be used as admissions, provided that the entire document is taken into
account when analysing the evidence.

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Section 28 of the Act provides that admissions are not conclusive proof of matters in
question, but they may operate as estoppels under the provisions in the Act.

Rationale for receiving admissions against a person who made them:

 Admissions are self-harming. The presumption of the law is that no one wants to
harm himself therefore if a person made an admission against himself, then such
declarations are probably true.

 Looking at an analogy of contradictory statements by witnesses, admissions are

received against a party, not as evidence of their truth and therefore an exception to
the hearsay rule, but merely as being inconsistent with and so, discrediting the case
otherwise set out by the party, e.g. if A owes B 10m/=, A paid 5m/=, which B
acknowledged in a letter. A may bring such letter to court to prove this. However, this
will not be conclusive evidence according to Section 28.

 This is the most generally accepted rationale. A party’s declarations, whether for or
against his interests may always be taken to be true as against himself.

Slatterie v Pooley 6 M & W 664

Held: According to Parker J,

“Whatever a party says is evidence against himself. What a party admits to be true
may be presumed to be so...”

R v Turner [1910] 1 KB 346 emphasizes the rationale for receiving admissions as evidence.

In view of this rationale, Phipson gives the general rule on admissions: Subject to certain
exceptions, the general rule in both civil and criminal matters is that any relevant statement
made by a party is evidence against himself. The weight to be attached to each admission is a
different matter but admissions are generally admissible in court. If a declaration is made in
favour of a party, then such declaration is not receivable as an admission.

Brocklebank v Thompson [1903] 2 Ch 344, 352

Held:

“No presumption of truth arises with regard to declarations of a party or his agents
when tendered as evidence in his own favour, otherwise everyman, if he were in a
difficulty or in view of one, might make declarations to suit his own case.”

Gilbert on Evidence, 1st edition, p.122:

“No man can be a witness for himself, but he is the best witness that can be against himself.”

There are exceptions to the general rule as regards who can make admissions, i.e. that other
persons (other than parties to the suit) which statements bind parties to the suit as admissions.
38
Section 17 of the Act provides that statements made by a party to the proceedings, or by an
agent of any such party whom the court regards in the circumstances of a case as expressly or
impliedly authorised by him to make them, are admissions.

Before such a statement is receivable in court, the relationship of agent-principle must first be
proven or established. See the Civil Procedure Rules (Order 3), on authorised agents e.g.
advocates or people with powers of attorney or otherwise authorised. However, if such
evidence is already there, it does not have to be proven. E.g. if one is a lawyer, it is automatic
that s/he is the client’s agent; powers of attorney duly signed, registered and presented to
court are evidence of one being another’s agent.

According to Order 1 CPR, a person can write a letter authorising another (co-plaintiff or co-
defendant) to conduct the matter on his behalf. In doing so, such a person is not an agent in
the strict sense of S 17; they are merely representatives.

It really all depends on the wording of the letter. If one says you will be an agent according to
S 17, so will you be. However, if not, you’re just a representative. The agent must be
impliedly or expressly made such.

S17 also refers to statements made by parties to suits suing or being sued in a representative
character. These are not admissions unless they were made while the party making them held
that character of representative.

The section also refers to persons with proprietary or pecuniary interest in the subject matter
of the proceedings and who make the statement in the character of persons so interested, e.g.
where partners in a business if one of the partners makes an admission, it will bind the
rest...co-shareholders, co-defendants, etc.

Prerequisites:

 The admitting party must be in the capacity that links him to the suit when making the
admission, e.g. you must still be in partnership for your statement to bind the co-
partners;

 Section 17 also speaks of persons from whom the parties to the suit have derived their
interest in the subject matter of the suit (e.g. in administration of the deceased’s estate,
statements by the deceased are admissible against the estate administrator, a tenant,
transferee of land, statements of the seller can also be used against the transferee).

 General qualifications are made at the end of Section 17, i.e. admissions are such if
they are made during the continuance of the interest of the persons making the
statements, e.g.

o Tenant and seller; the statement by the seller must have been made while the
seller was still owner, in order for it to amount to an admission;
39
 o If the defendant made a statement before he became owner of the land in
question, the statement cannot be admitted as against the administrator of his
estate.

3. Admissions by persons whose positions must be proved against party to the suit
(Section 18 Evidence Act)

Statements made by persons whose position or liability it is necessary to prove as against any
party to the suit are admissions, if those statements would be relevant as against those persons
in relation to such position or liability in a suit brought by or against them, and if they are
made while the person making them occupies such position or is subject to such liability.

Example: A borrows money from bank B and C guarantees that should A fail, C will pay. A
fails to pay and B sues both A and C and at B’s option, B may choose to sue C only
depending on their obligations. To prove the debt against the guarantor, you must prove the
debt against A (principal debtor), i.e. because they are jointly and severally liable. Statements
made by A are admissible as against C.

4. Admissions by persons expressly referred to by party to the suit (Section 20 Evidence

Act)

Statements made by persons to whom a party to the suit has expressly referred to for
information in reference to a matter in dispute are admissions. (If you’re party to a suit, A
sues B who says the 10m/= is not due, even C knows that it is not due, C goes to court,
acknowledges these truths and says 10m/= is due, that will be taken as an admission as
against B referred to C as a person who knows.)

Exceptions to the rule that admissions should be made against the maker (i.e. where one can
be a witness for themselves)

 If the statements are made in the presence of the adversary party and are not denied by
him, then they can be used as admissions and to support the case of the maker. (The
presumption of the law is that whatever is in the affidavit has been accepted by the
adversary);

 If the law allows it (by statute) e.g. in taxation law, assessment of tax is made basing
on returns paid by the tax payer. That can be used as evidence by the taxpayer in case
s/he is challenged, the tax records can be used as evidence in court for themselves.

 If it is in the case of public accounts, they can be presented by the public officers
concerned. See Ss 73-77 of the Act

 If the statements are contemporaneous writings, e.g. those used to refresh one’s
memory (for instance in a meeting), those can be used by a party for themselves;

40
  Where the statements are not tendered as evidence but they are brought as original
documents of record or if they are part of the res gestae, if they are proving acts of
ownership or if they are showing good faith. For example statements of account from
business, bank statements, etc. It is known that good faith is really a statement of
mind, so are matters of fraud, therefore those documents can reveal whether or not
one was fraudulent. On questions of ownership, the documents involved can be used
to show this, e.g. letters between tenants, receipts, etc.

When and to whom admissions may be made:

The principle rule is that when one is a party to a case, whether he’s suing or being sued
personally, any admission made by him on a former occasion is admissible and can be used
against him. According to case law, this includes statements made while someone was a
minor. O’Neil v Read 7 Ir.L.R 434

There are, however, qualifications to this. See Phipson on Evidence, p.432; Halsbury’s Laws
of England (on admissions).

Statements made when someone is acting in representative capacity are also admissions, save
that those made after a character exists are not admissions against the other parties to the suit.
See Section 17& Trustees v Hunting [1897] 1 QB 611

It is immaterial to whom admissions are made, therefore, even statements made to strangers
are receivable as admissions. Admissions made to oneself are merely soliloquy. See R v
Simons.

Even admissions made to a legal advisor or a wife are receivable if proved by a third party.
The rationale is that the legal advisor or wife wouldn’t readily admit, but if a third party ’s
word showed, then they are receivable.

On the other hand, lawyers’ admissions, in order to bind their clients must have been made
specifically to the adversary party and admissions made to support the case of a creditor
should also have been made to the creditor. They shouldn’t be statements made to people who
are privy to the creditor-debtor contract. (That does not take out admissions made to the
debtor’s agents, which are definitely admissible.)

See:

Stamford Co. v Smith [1892] 1 QB 765

Shaw v Shaw [1935]2 KB 135-136

Uganda Kabandize

R v Simons (statements made to oneself)

41
Circumstances in which admissions are made (Are they relevant?)

The weight of admissions depends on circumstances under which they were made. Section 20
gives the process of proving admissions made by persons themselves or on their behalf. As a
pre-condition, there are specific instances where admissions can be considered by the court
and be provable against the person who makes them, or his representative in interest.

Section 20 provides that an admission may be proved by or on behalf of a person making it if

such an admission would have been relevant between third parties if such person who made it
had died. The section makes reference to S30 which deals with people who cannot be called
as witnesses, including dead people.

Section 20 also provides that such statements can also be proved when they consist of a
statement which refers to the existence of any state of mind or body relevant, or in issue when
that statement was made at a time when the state of mind or body existed and following
which, certain events or conduct occurred which bring the statement’s truthfulness in doubt.
For example, if there were letters showing one’s insanity and later, the person acts sanely,
later those documents can be admitted to prove that one was sane.

The section also provides that such statements are provable if they are relevant in any other
way than by way of admissions. Common law has added more exceptions to the rule that one
is not required to prove admissions made by them. Admissions, unless amounting to
estoppels, can be challenged by the party against whom they are brought in evidence as being
untrue.

Instances which may water down the weight of an admission

 If one proves that there was a mistake of either fact or law

 Proof that one uttered the admission in ignorance, levity or an abnormal condition of
mind. See R v Hedges 3 Cr. App. R 262

On the other hand, the weight of an admission increases with the knowledge and deliberation.
For example the words of a Law Professor and those of an auctioneer. See R v McGregor.
The solemnity of an occasion on which a statement was made also matters.

Admissions made conditionally are receivable in evidence if the condition is fulfilled, but not
otherwise. In the same way, if an admission is made when the maker has in his mind a
particular hypothesis of facts.

Powell v McGlynn 1902 Ir.L.R 154

Offers “without prejudice”

42
Offers of compromise made without prejudice expressly or impliedly cannot be admitted in
evidence as admissions. The term “without prejudice” acts as a sort of exclusion clause to
excuse the letter writer from liability from something, as long as it was written “without
prejudice” for example in a lawsuit where a lawyer agrees with his client that at 100m/= he
can drop the suit yet they can continue at 180m/= and later the suit breaks down, the lawyer
can write such letter.

Offers may be taken to have been written “without prejudice” even when it is not expressly
stated. See Oliver v Nautilus Co. [1903]2 KB 639. These are offers especially showing that
a party was making a bonafide attempt to settle without a dispute. It will be taken as such
even if it was not expressly stated as such. For example, if you agree to settle a dispute
outside of court at a certain amount, it doesn’t mean that one is banned from suing another.

Even if the statement won’t be received as an admission, the fact (of the existence of the
letter) and date of the letter are admissible, to prove elements like delay, unreasonable
conduct.

Walker v Wilsher 23 QBD 335 (Court of Appeal decision)

Stotesbury v Turner [1943] KB 370

For an offer to amount to one “without prejudice” apart from that statement in the letter or its
being adducible from the construction of the statement, there are certain pre-conditions which
must be fulfilled:

 There has to be a dispute or negotiations between parties and the statement must have
been written bonafide to settle that dispute. Re Daintrey exparte Holt [1893] 2 QB
116. E.g where people write, “private and confidential” meant to be inter-parties, if it
contains threats or other statements not in line with a settlement or resolution of the
conflict, it can be brought as evidence of those other elements. Watt v Watt 1905 AC
115.

 If the alternative to accept what was written was the committal of an act of
bankruptcy, then the letter may be admitted to prove that act, e.g. hiding away from
your creditors in an act of bankruptcy (keeping house). If the debtor writes a letter to
his creditors “without prejudice” and the creditor accepts, court will consider that the
debtor is saved from liability. However, if the creditor refuses, whether or not the
words “without prejudice” were written, the debtor will be liable and considered to
have committed an act of bankruptcy. See Re Daintrey (supra)

 If independent facts were admitted during the negotiations, such independent facts are
admissible as admissions even if a letter without prejudice follows. Also, if an offer
without prejudice has been accepted by the adversary or if the protected condition has
been fulfilled, then the letter without prejudice will be taken as an admission.

43
  A notice “without prejudice” to annul a sale following failed acceptance of a given
condition is void and unacceptable. (E.g. if one fails to fulfil their side of the contract
and gives notice, then tries to turn around and say they didn’t, claim it was written
without prejudice, then you’re estopped). Re Weston [1907]1 Ch 244

 Criminal libel “without prejudice” is receivable in evidence. The rationale is to avoid

people hiding under this cover to defame others. Stretton v Stubbs [1905] ALLER

 Letters “without prejudice” are brought as admissions if they are used in a different
action than the dispute which was being settled and also, if they are used by third
parties (e.g. if there are negotiations between two people and it contains relevant facts
in another case concerning different people, not you, then the court will admit it for
purposes of proof or evidence in that other case). The protection applies only in the
same action and between them and the third parties. Thus, third parties can rely on
offers without prejudice.

 Letters or negotiations between lawyers are inadmissible as against themselves as

well as against their clients. La Roche v Armstrong [1922] 1 KB 485

Admissions made under compulsion or coercion

In a civil trial, there is legal compulsion and an admission made under compulsion is
admissible e.g. a witness may answer to interrogatories and the evidence got out of the
interrogatories would be admissible both in the case where the interrogatories have been
conducted and in subsequent civil trials. This also applies to admissions made during
testimony where the speaker or his lawyer had objected to the question being asked or the
answer given by the speaker at the time might have been irrelevant or the witness was
prevented from fully explaining the statement. All this notwithstanding, the statement can be
used at a future trial as an admission.

When admitting statements, the whole statement must be taken, including hearsay and
opinion evidence. Shariff & another v Sethna & others. It must be noted though that the
general rule on weighting of hearsay evidence is that it is not admissible.

An admission is receivable when founded on hearsay although its weight will be very slight.
This applies to admissions based on the party’s declaration of opinion or belief. But where the
admission is a mere inference from facts not personally known to the declarant, the court may
disregard the inference and look to the facts. A bare statement that a party is informed
without the addition of his or her belief in the information will not amount to an admission.

The Form of admissions

Admissions may take on many forms, e.g. affidavits, which must first qualify as an admission
before being accepted as evidence. It is immaterial what form admissions are made in,
therefore, they can be made by way of affidavits or even answers to interrogatories.

44
Re Cohen [1924] 2 Ch 515

Held: Admissions can be declarations in wills (See Re Hoyle [1894] 1 Ch 34), recitals and
descriptions in agreements, receipts, accounts, passbooks, maps, etc.

With regard to pleadings, unless they are sworn e.g. affidavits , or adopted in future
proceedings, they aren’t admissions and even judgments in previous cases are not admissions
of facts.

Matters provable by admissions

Admissions can prove both law and facts, or a mixture of both. However, admissions which
tend to prove law or a mixture of law and fact will have very little weight unless they amount
to estoppel.

In cases of adultery, the burden of proof is ordinarily high, however, the admission of
adultery, although uncorroborated, has been held to be sufficient evidence where it is
considered trustworthy e.g. where it is seen as having been made to obtain forgiveness as
opposed to obtaining a divorce. See Robinson v Robinson

See:

R v Naguib [1917] 1 KB 359

Gopa & others v R

Kasule v Uganda

Russell v Russell [1924] AC 681

Chilcott v Chilcott [1904] TLR

Admissions from documents

Unless excluded by the Evidence Act, a party’s admissions out of court being primary
evidence against him are receivable to prove the contents of a document without notice to
produce or explain the absence of the originals of such documents. Similarly, oral admissions
as to the contents of such a document may be relevant in certain situations. S 21

The above is based on the general rule of parole evidence that documentary evidence is the
best, i.e. it speaks for itself therefore there is no need for one to prove the contents of the
documents when they are clear.

Instances of admissibility of oral evidence

 Where one is required to give secondary evidence (S21) and where one is entitled
under S62 (See also Ss 60 & 69)
45
  Where an admission is made in attestation of a document. See S 69

 If the genuineness of the document produced is in question (S21) e.g. if the other
party challenges the genuineness of the contents of the title, if either party ever made
an oral statement concerning that document, such can be used as an admission, and
therefore evidence against him or her. Although the contents of a document may be
proved in that fashion, they cannot be varied or contradicted in that manner. See Doe
v Webster

See S22. An admission made under an express condition or intention that it should not be
allowed in evidence or if from the circumstances of the case, the parties agreed as such, then
it should not be admitted as evidence.

Ambiguous admissions

Where the facts admitted are capable of two different interpretations, both of which being
equally possible, it will then be up to the court to decide which of the two meanings is taken.

Davey v London & South Railway 12 QBD 70, 76

Transami v Roadmaster Cycles

Held: Arach J- For Court to give judgment for an admission, under Order 11 CPR, the
admission must be unequivocal.

CONFESSIONS

The Uganda Evidence Act does not define confessions nor does the Interpretation Act. One
can however, borrow the definition of the Kenyan Evidence Act which indicates that
confessions comprise of words or conduct or a combination of words and conduct from
which whether taken alone or in connection with other words lead to an inference that may
reasonably be drawn that the party making the confession has committed an offence.

It is important to note that confessions have several ingredients. These have been spelt out by
court in different cases.

In Uganda under section 24, it is indicated that a confession is irrelevant if it appears to court
that having regard to the state of mind of the accused in all circumstances surrounding it, the
accused made it out of violence, force or threat, inducement or promise calculated in the
opinion of the court to cause an untrue confession.

In the case of Swami v The Emperor (1939) 1 ALL ER 396, the principle was confirmed
that a confession must either admit in terms the offence or all facts which constitute the
offence. The same decision was upheld by the court in Uganda v Yosamu Mutahanzo
(1988-90) HCB 4 where it was held that a confession connotes an unequivocal admission of

46
having committed an act in law that amounts to a crime and must either admit in terms the
offence or at any rate substantially all the facts which constitute the offence. The accused’s
extra judicial statement was an exculpatory statement in the sense that the 4 accused threw
blame on the accused and his statement could not amount to a proper confession. Instead of
being convicted for murder the accused was convicted for manslaughter.

An admission of a gravely incriminating or even conclusively incriminating fact is not in

itself a confession. If an accused person admits that he owned a fire arm at the murder of
someone, this does not mean that he has confessed to the murder of the deceased.

Therefore, a confession must be an unequivocal admission of having committed an act which

in law amounts to a crime and must either admit in terms the offence or at any rate
substantially all the facts which constitute an offence. Thus, in Gopa &others v R (1953)20
EACA 318, it was stated that the accused’s extra judicial statement was exculpatory in the
sense that it explained the act of stabbing and therefore the blame on the deceased person.
Also in the case of Uganda v Lakot (1986) HCB 27, it was held that the confession was
equivocal since the accused admitted to having assaulted the complainant but went ahead to
explain why he did so.

In the case of Gopa the Judge said that a confession is a direct acknowledgement of guilt on
the part of the accused which is sufficient to convict him. The judge held that although an
extrajudicial statement contains self-exculpatory matter it can still be a confession if the self-
exculpatory matter does not negative the offence alleged to be charged. It is important to
note that this is different from admissions. An admission may be equivocal as long as it
contains matters relating to the liability of the maker.

Self-Exculpatory Matters

The definition is in Swami v The Emperor. It is clearly indicated that it is a matter adopted
or intended to free the maker from blame for the act admitted in the confession. The same
was discussed in the case of Uganda v Kamalawo & Others (1983) HCB 25.

The other ingredient is that a confession must be admitted as a whole. If it contains some
parts that are inadmissible then it cannot be taken as a confession. In the case of Uganda v
Yosefu Nyabenda (1972) 11 ULR 19, the judge clearly stated that the court was to receive
the confession of the accused as a whole and not in several parts and since it contained lies
and half-truth then the confession could not be admitted as a true one.

A confession has to be taken as a whole although it does not have to be believed as a whole.
The case of Uganda v Sebuguzi & others (1988-1990) HCB 18 clearly stated that as regards
the value of a confession against the maker it is trite law that a confession should be taken as
a whole. It was also stated that a confession need not be believed as a whole or disbelieved as
a whole. It was open to the trial judge to accept part or reject the whole of it.

Retraction of Confessions

47
An accused person can retract or repudiate a confession. A retracted confession occurs when
an accused makes a statement or a confession which he later seeks to take back on the ground
that he either made it out of mistake or did not do it voluntarily. Section 24 and 25 Evidence
Act should be read together on this. An accused person may retract a confession in two
ways:-

 By clear and positive express repudiation.

 By implication.

In Polo v R 17 EACA 150 the policemen arrested a Congolese and they made a conversation
in Kiswahili. During the trial the accused said there was a misunderstanding between them
during the conversation. The Court took this as a retracted confession.

In R v Kengo & Another (1930) 10 EACA 123, the accused made a statement before a
magistrate and confessed the murder but during the trial he made an unsworn statement in
which he denied the previous statement, he said he had only heard from someone else that the
deceased had died.

The general rule regarding repudiated and retracted confessions is that the confessions are
admissible in evidence provided the court is satisfied that the confession was made
voluntarily. In the case of Tuwamoi v Uganda (1967) EA 84, the court said that there is no
clear distinction between repudiated and retracted confessions and for any of them to be
accepted by court it should be done with great caution and the court should first satisfy itself
that all circumstances surrounding the confession do not negative it. To amount to a retracted
confession the accused person admits having made the statement recorded but he now wishes
to take it back on the ground that it was made involuntarily whereas a repudiated confession
is a statement which the accused person avers he never made. All this is discussed in the
Tuwamoi case.

In Uganda V Kanunini Edward (1976) HCB 159, Judge Allen held that with regard to
retracted confessions, the court should direct itself on the dangers of acting on it in the
absence of corroboration and some material particular except where the court is fully satisfied
in the circumstances of the case that it must be true. In Zenon Zavuru (1993-1993) HCB 7,
the Court of Appeal stated that once the appellant had repudiated the confession the trial
judge ought to have directed himself and the assessors to the effect that court had to accept a
confession with caution and had to be satisfied that in all circumstances of the case the
confession was true.

What happens when someone has retracted or when the accused denies the confession or
challenges its admissibility?

If the confession is denied by the accused person then the trial judge should conduct a trial
within a trial. This in accordance with case of Major John Kazoora v Uganda (1994) 1
KALR 143. The purpose of the trial within a trial is to decide upon the evidence of both sides

48
as to whether the confession should be admitted. Court cannot by simply looking at the
statement conclude that it was made voluntarily.

A statement that is made voluntarily is one made absolutely free from inducement influence
of whatever nature. In the case of Commissioner of Customs and Excise versus Harz &
others (1967) 1 ALL ER 172, the court held that it is true that many of the so-called
inducements have been so vague that no reasonable man would have been influenced by
them, but one must note that not all accused persons are reasonable men and women.
Therefore, a statement made involuntarily is inadmissible. The same was held in the case of
Uganda v Kalema & others (1974) HCB 142. In Binuge & others v Uganda (1992-93)
HCB 29, the court held that the 1st appellant was prejudiced when his objection to the
admissibility of his extra judicial statement was summarily dismissed by the trial judge. It
was held that it is trite law that when the admissibility of an extrajudicial statement is
challenged, then the objecting accused must be given chance, to establish by evidence, his
grounds of objection through a trial within a trial.

Section 25 UEA gives an exception to the general rule of involuntariness. The confessions
referred to in section 24 if made after the impression caused by any such inducement, threat
or promise has in the opinion of the court been fully removed, then it is irrelevant.

R v Smith (1959) 2 ALL ER 193

Facts: There had been a fight between persons of two companies and one of them was
stabbed to death. On the same day the police put members of the company on parade and
while interviewing them a police officer made a statement to one of the accused persons that,
“I am not leaving, I am staying until you give me an answer to this fight ”. After saying this
the accused confessed that he was the one who stabbed the deceased and the following day
police referred to that statement made by the accused and asked him whether he wanted to
make a confession about it. He was cautioned and he made a written confession. He was
convicted and made an appeal.

Held: The court of Appeal held that the words were threats i.e. on the previous day and the
confession was inadmissible. On the following day the first threat was operating on the
accused’s mind and the confession was inadmissible. According to Dau v R (1962) EA 9 the
effect is that if the original inducement or threat has disappeared then a later confession is
admissible.

In Dau v R

Facts: A mother left the girl with the appellant. When her mother returned, the child had
disappeared. The next day the girl was found drowned in a river and the medical evidence
showed that she had been interfered with sexually. The appellant was arrested and three days
later taken by police sergeant to the river. Without charging or cautioning him the policeman
asked the appellant to point out where he had pushed the deceased into the river. The

49
appellant said it was where people draw water. The next day the sergeant said to the appellant
“You are going to say what you told me yesterday but I am not going to force you to do so”.

Issue: Whether the sergeant’s words constituted a threat?

Held: The words “You are going to say what you told me yesterday …” did not constitute an
order or threat in the mind of the appellant as they were tempered by words which followed
and any possible effect they might still have had on the appellant would have disappeared by
the words of caution which followed.

Thus where a magistrate or police officer takes a special precaution before taking a statement
the lapse of time between the previous inducement and the taking of the statement and the
lack of any allegation by the accused person that there was any threat or inducement at a later
stage after the caution is given, the confession is admissible. See R v Nanta (1944)11 EACA
83 and section 25 of the evidence act.

The effect of inducements and threats

This is governed by Section 24 of the Evidence Act. The section is to the effect that the
confession made by an accused person is irrelevant if taking into account the state of mind
and the circumstances surrounding the confession - it was caused by violence, threats, force,
inducement or promise calculated in the opinion of the court to cause an untrue confession. It
is important to note the salient elements referred to in the section.

 The court has to consider the state of mind of the accused during the time the alleged
confession was made. It is therefore mandatory that when the accused person alleges
that he made the confession in any of the circumstances mentioned by the section then
the court should make a finding as to whether the accused person voluntarily made
the confession therefore the state of mind of the accused has to be clearly stated. This
is in line with the position in the case of Emmanuel Nsubuga v Uganda (1992-1993)
HCB 24.

 The circumstances in which a confession was made have to be investigated to find out
whether such circumstances amount to any of the aspects mentioned in the section. It
is important to note that although the section appears to say that both the state of mind
and the circumstances have to be looked at proof of the items indicated in the section
by any of the two means would suffice.

 The Violence, force, threat, inducement or promise must be of a nature calculated in

the opinion of the court to cause the making of an untrue confession. It must have
been made to a person in authority i.e. a police officer or magistrate. The nature must
be relating to the commission of an offence according to case of R v Norahma 9 KLR
12. The onus of proving threats, violence, inducement or force lies with the person
alleging such.

Section 24 reflects the position which was taken in the case of:
50
Uganda v Wabwire (1976) 212

Facts: The accused was charged with murder and the prosecution sought to produce a
confession statement allegedly made by him on 16th October 1975 to a magistrate Grade 11
at Iganga. At the commencement of the trial Counsel for the accused intimated that he
intended to challenge the confession statement and so the trial Judge ordered a trial within a
trial to be held. During the trial within a trial the Magistrate Grade 11 (PW4), the only
witness called by the prosecution during this trial, testified that the accused was brought to
his Chambers at Iganga Court by a police Constable for purposes of making a statement.

Held: The magistrate cautioned the accused in the following terms:

“If you have been forced or threatened or induced in any way by the police to come
here and make this statement you should say so. But whatever you will say shall be
recorded down and may be brought as evidence at your trial at the High Court.”

The accused told the Magistrate that he had not been forced and wished to make a statement
voluntarily. A statement was then recorded in the language of the accused; it was read back to
him and he said it was true and correct. A translation was made in English and the accused
thumb marked both statements and the Magistrate countersigned them.

On Cross examination, when it was suggested to the magistrate that the caution administered
was improper and that the accused had not volunteered the statement as he had been beaten
prior to being taken to him, he (the magistrate) said he did not know what happened to the
accused prior to being brought before him but as far as he could see the accused was normal
and fit. He did not complain of any beating or threat.

The accused, who gave sworn evidence, said that he had been arrested on 8th October 1975
and kept in Police custody until 16th October 1975 when he was taken to the court to make a
statement. During that time he was subjected to interrogations and merciless beatings (he
showed court some scars to substantiate these allegations) and was told to admit having killed
the deceased. Before he was taken to the magistrate he was told to admit or else he would
face further beatings. The statement he made was untrue and it was because he feared the
police beatings that he made a confession; he made it out of fear for his life.

Counsel for the state submitted that even if the allegations of the accused that he was beaten
were true, that was not enough to exclude the statement; the accused must prove that the
beatings and the threats were intended to cause an untrue confession to be made.

Court held as follows interalia:

 Once a confession is properly recorded it is primafacie admissible. However, the

accused is entitled to challenge such a statement if prior to being made he was
induced to make or made it through fear or threats or through promises and under
section 24 of the Evidence Act. It is for the prosecution to prove beyond
reasonable doubt that a confession is voluntary and the accused need only raise
51
 objections to it for there is no requirement in law that he must prove his allegations of
threats or promises.

 Where the defence challenges a confession a trial within a trial is held and it is during
this trial within a trial that the prosecution must adduce all the evidence relied upon to
prove the voluntary nature of the statement. The prosecution must therefore call
witnesses for purposes of proof and witnesses who have testified before or who might
be called later must be called for the purpose of proving the statement if their
evidence is relevant and in fact for purposes of the trial within a trial any witness
whether on the summary of evidence or not is relevant. The accused is then entitled to
give evidence on oath or not on oath and to call witnesses if any.

 In a trial within a trial the evidence must be complete by itself but the evidence in the
main trial is not before the court at that stage and although it may be looked at, it
cannot be relied upon to the prejudice of an accused.

 In the instant case, the prosecution did not comply with the standard procedure in
proving the alleged confession for they did not lay before court all the evidence that
as necessary for it to decide on the issue of admissibility of the confession. The
prosecution called only the magistrate as a witness for purposes of proving the alleged
confession yet the accused made damaging allegations of brutal beatings against the
police in his sworn evidence and showed the court some scars to substantiate these
allegations. Since the prosecution did not call anybody from police to deny these
allegations it was extremely difficult to assume that the accused had lied against the
police.

 The accused in instant case, ought to have been charged and taken to court as soon as
he was arrested and in the absence of police evidence denying the accused’s
allegations of long interrogations, beatings and threats by the police it could not be
said with certainty that these allegations were without merit, which doubt in the
circumstances of the case and the evidence before court would be resolved in favour
of the accused.

 The confession was inadmissible since it was made as a result of threats.

 A confession is generally received by court with caution because the motive of the
person making such confession is often not clear; it is doubtful whether the legislature
intended to enact that the end justifies the means when in section 24 maximum
safeguards were made against extracting confessions made by use of force.

The exception to section 24 is found in section is found in section 26 of the Evidence Act.
Under section 26 confessions otherwise relevant do not become irrelevant because of promise
of secrecy, deception, drunkenness or failure to be warned that such a person was not bound
to make a confession. According to the case of Mwangi v R (1954) EA 377 the general

52
principle is that the court must have regard to the state of mind of the accused and all
circumstances of the case in admitting confessions.

Confession Against Co accused (section 27 Evidence Act)

Under section 27 when more persons than one are being tried jointly for the same offence,
and a confession made by one of those persons affecting himself or herself and some other of
those persons is proved, the court may take into consideration such confession as against that
other person as well as the person who makes the confession.

Under this section the general rule is that an accused person’s confession can be used against
his co accused. However, there are exceptions to the rule in section 27. According to the case
of Nsubuga v Uganda if the statement intends to exonerate its maker and implicates the co
accused then the weight attached to it is very small. In the case of Abdu Kasujja v Uganda
Criminal Appeal 596 of 1964 Justice Keating said that a confession by an accused person
can be used as a basis of the prosecution’s evidence against the co accused however such
evidence needs corroboration and the accused must implicate himself to the same extent he is
implicating the other and he should be exposing himself by making such a confession to the
same risk or even greater risk than the others. The same principles are contained in the case
of Uganda v Kamusuni &Another (1976) HCB 159.

Uganda v Sebuguzi & Others (1988-1990) HCB 18

Facts: The three accused were indicted with murder of the father of A1. In this case all the
evidence of the 7 prosecution witnesses was admitted including an extra judicial statement
recorded from A1 by a grade 11 magistrate who was also a witness for the prosecution. The
extra judicial statement produced as an exhibit at the trial contained the gist of all the
prosecutions’ evidence of five witnesses called to testify in court. PW1 a son of the deceased
and brother to A1 testified that his brother (A1)who had been staying with A2 moved to the
deceased’s house in December 1984 but soon thereafter started selling the deceased’s property
as a result of which a report of the theft was made to the police before whom A1 admitted the
sales. Later, the disappearance of the deceased was reported to the Chiefs who convened a
meeting at which A1 stated that his father had gone to Bukakata and he was asked by the
gathering to bring proof of this statement on an appointed day. A1 never turned up on the
appointed day but later turned up alleging that his father had given him authority to look after
his house. He was taken to the Sub county Chief before whom he denied the whereabouts of
his father. The search for the deceased started in June 1988, A1 who had in the meantime
disappeared from the village reappeared and was taken to police before he admitted killing
the deceased together with A2 and A3. Through A1’s direction the body of the deceased was
dug up from where it had been buried.

In the meantime co accused 2(A2) was arrested. Other evidence was of a land dispute
between the deceased and A2&A3, evidence of the police officer in charge of the case who
on top of arranging the exhumation of the deceased, arranged for medical examination by a
doctor and recording of A1’S extrajudicial statement before a grade 11 magistrate. Medical
53
examination revealed a fracture of the scale ones and a large crack extending to occipital
bones. The cause of death was bleeding to brain damage.

The extrajudicial statement was in the nature of a confession in which A1 narrated how he
got involved in the plot to kill his father. It started he said, when he moved to live in the
house of A2 as a paying guest as his father was mistreating him. When staying with A2, he
was told by A2 about the land already mentioned and of the previous unsuccessful attempts
to kill the deceased by A2 &A3 and that he agreed to facilitate the death of his father by
A2&A3. That this happened on one evening when he was digging in his father’s garden
where A2 dug a pit and when the deceased came at about 7.pm to check on his work A2&A3
who were hiding nearby jumped out; A3 caught the deceased while A2 seized the hoe from
A1 and hit the deceased with it twice on the head. The deceased was pushed into the pit and
buried.

A1’S statement was a denial of involvement in the crime and an explanation of how some
properties of the deceased came to be in his house.

During submissions Counsel for A2&A3 argued that the evidence of the extrajudicial
statement needed corroboration or support by independent evidence.

Held: It was held interalia:-

 Although a confession of a co accused could be taken into consideration against a

fellow accused person, this being of the weakest kind, could only be used as lending
assurance to other evidence but could not be used to form the basis of the case against
another accused. The reason for considering such evidence as the evidence of the
weakest kind was that it was not only hearsay, but it was evidence of such a nature
that the co accused couldn’t test in cross-examination of the maker against him.

 Credible and independent evidence was required to support such a confession.

 As regards the value of a confession against the maker, it is trite law that a confession
should be taken as a whole it was also clear law that it needed not to be believed as a
whole or disbelieved as a whole. It was open to the trial judge to accept part of the
statement and reject all of it. A1 was found guilty while A2&A3 not found guilty.

In the case of Gopa & others v R (1953) 20 EACA 318 it was held that the weight of
evidence of a confession by an accused against co accused is lessened where he obviously
intends to implicate his co accused and not himself although actually he does fully implicate
himself.

Procedure for recording confessions.

The question is to whom and how the confession is made. According to section 23 of the
Evidence Act no confession made by any person while he or she is in the custody of the
54
police shall be proved against any such person unless it is made in the immediate presence of
a police officer of or above the rank of Assistant Inspector or a magistrate. The section goes
ahead to provide that no person shall be convicted of an offence solely on the basis of a
confession unless the confession is corroborated by other material evidence in support of the
confession implicating that person.

The procedure for recording confessions is found in the Evidence (Statement to Police
Officers) Rules and case law. The procedure for magistrates is illustrated in the case of
Uganda v Doyi Wabwire Kyoyo (1976) HCB 213. Justice Sekandi laid down the following
procedure.

 When an accused person or suspect is brought to a magistrate the magistrate should

ensure that the police or prisons officer escorting the accused leaves the chambers.

 The magistrate should ask his court clerk to sit in the chambers with him so as to
guard against unnecessary allegations and to act as an interpreter where necessary.

 The Magistrate should use court paper in recording any statement from the accused.

 The accused should be informed of the charge against him if in fact he has been
charged. If he has not been charged before, the magistrate should inform him of the
allegations brought by the police as clearly as possible so that the accused is in no
doubt as to the nature of the charge which he is likely to face and upon which the
statement is likely to be adduced as evidence at the trial.

 Immediately upon being informed of the charge, the magistrate should caution the
accused in the following terms:

“You need not say anything unless you wish but whatever you do say will be taken
down in writing and may be given in evidence”

 Then the accused should be informed that he has nothing to fear or hope for in making
a statement before the magistrate.

 If the accused volunteers a statement then this should be recorded in the language
used by the accused and an English translation made of it. Both statements should be
read back to the accused who should signify his agreement with the contents with his
signature or thumb mark. Then the magistrate should countersign both statements and
date them.

According to the case of Njuguna & others v R ( 1954) 21 EACA 316 it was held that it is
inadvisable if not improper for the police officer who is conducting the investigation of the
case, to charge and record the cautioned statement of the accused. According to the case of
Uganda v Kalema & Another (1974) HCB) 142, it is clearly indicated that such a section
means that the accused should appear before an impartial person who knew nothing about the
background of the case. This means that the courts have to be on their guard to see that the
55
purpose of the exercise was not defeated by backdoor practices. The accused was
interrogated by a police officer who briefed the magistrate and here the magistrate could not
be regarded as an impartial person.

HEARSAY EVIDENCE

Hearsay evidence is not defined under the Act but inferred from the reading of sections 58 to
59 of the evidence Act. Under section 58, all facts, except the contents of documents, may be
proved by oral evidence.

According to section 59, oral evidence must, in all cases be direct; i.e.
a. if it refers to a fact which could be seen, it must be the evidence of a witness who says
he or she saw it;
b. if it refers to a fact which could be heard, it must be the evidence of a witness who
says he or she heard it;
c. if it refers to a fact which could be perceived by any other sense, or in any other
manner, it must be the evidence of a witness who says he or she perceived it by that
sense or in that manner;
d. if it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds.

Section 59 therefore admits only direct evidence and whatever is left out is referred to as
hearsay evidence and it is inadmissible. The reason behind admissibility of direct evidence as
compared to hearsay is that direct evidence is often the best evidence. According to common
law cases, this type of evidence has been defined as the 3rd person’s assertions narrated to
court by a witness for purposes of establishing the truth of that which was asserted.
The following are some of the characteristics of hearsay evidence;
a. It must be a statement verbal or written. In Chandrasekera v R [1937] AC 220
this was a murder trial where evidence was given that the victim was unable to
speak at the time of her death because of the wounds inflicted upon her. However,
she had managed to indicate to people around her that it was the accused who cut
her throat. One of the issues was whether the evidence of conduct which was
neither oral nor written could amount to a statement admissible and whether it
could be admitted or excluded as hearsay. Court held that conduct may at the time
56
 be a mode of communication and therefore could amount to either hearsay or direct
evidence and therefore admissible and in this particular case, the evidence was
admissible as an exception to the Hearsay rule.

b. It must be a statement made by a person who is not before court.

c. It must be introduced for purposes of establishing the truth of an earlier statement.
Subramaniam v. Public Prosecutor [1956] W.L.R. 965 the Appellant appealed a
judgment and order of the High Court of Johore Bahru. The Appellant was found
guilty of possessing twenty rounds of ammunition without lawful authority in
violation of 4(1)(b) of the Emergency Regulations, 1951. The Appellant was
sentenced of death. The Appellant was wounded and found by certain members of a
security force. The ammunition was found in a leather pouch. The Appellant argued
that he had been captured by terrorists and at all material times was acting under
duress. Also, that at the time of his capture by the security forces, the Appellant had
formed the intention to surrender. The Appellant sought to introduce evidence
describing his capture and what the terrorists said to him, but the trial court said
that the proffered evidence was not admissible unless the terrorists would be called
as witnesses. The judge said he could find no evidence of duress and the Appellant
was convicted.

The issue was whether e the alleged statements made to the terrorists’ hearsay, or
should they have been admissible?

It was held that Evidence of a statement made to a witness by a person who is not
himself called as a witness may or may not be hearsay. It is hearsay and
inadmissible when the object of the evidence is to establish the truth of what is
contained in the statement. It is not hearsay and is admissible when it is proposed to
establish by the evidence, not the truth of the statement, but the fact that it was
made. The fact that the statement was made, quite apart from its truth, is frequently
relevant in considering the mental state and conduct thereafter of the witness or of
some other person in whose presence the statement was made.

The Rule against Hearsay evidence

57
The assertion by the witness what some other person has told him concerning what thing that
other person has perceived is inadmissible. The rule renders hearsay evidence inadmissible in
both civil and criminal proceedings. The rule is applied strictly as established in R V Gibson
(1887) 18 QB 537 the accused was inducted for willful wounding. It was alleged that the
accused had thrown a stone at the victims house and immediately after the stone had hit the
victim, a passerby woman pointed at the accused’s house and said that the person who had
thrown the stone had gone inside and it was only the accused who was found inside the house
and was prosecuted and convicted.
He appealed on the grounds inter alia that on evidence of this lady who herself had not been
called in as a witness in court should not have been admitted.

Court held that the evidence was hearsay because the lady had not been called to testify and
the evidence should not have been admitted. Court further stated that it has been court’s
mandate to exclude hearsay evidence from the proceedings right from the beginning but in
practice parties have a duty to raise objections against certain evidence and where they fail to
do so, they may be deemed to have waived their rights.

See Sparks V R [1964] Ac 964 where the appellant was convicted of indecent physical
assault of a girl under the age of four. Immediately after the assault, a child who was not
called as a witness at the trial told her mother that it was a colored boy who had done it. The
appellant was a white man. This evidence was objected to on grounds of hearsay.
Court held that the mother’s evidence of what her daughter told her was hearsay, the child not
having been called as a witness there was no basis on which her statement could have been
admitted.

Why hearsay evidence is not admitted

1. Since the person who made the original statement cannot be present to be cross
examined to test its veracity, the witness reporting may do so carelessly.
2. There is a likelihood of distortion of the original statement i.e. it may be twisted
depending on the interest of the witnesses.
3. There is lack of opportunity to judge the power of perception of the person who made
the original statement.

58
 4. It may not be possible to establish the meaning of words used because the 3 rd party
may have used them in a special sense while the person reporting may give a false
meaning.
5. There is no opportunity to judge the demeanour of the person who made the original
statement.
6. Admission of hearsay evidence is likely to lead to protracted litigation because there
might be no end in admitting what was said.
7. Hearsay may defeat the efficiency of investigation since it would widen the scope.
8. It has the tendency of surprising the opponent which is an unfair advantage.

Exception to the Rule of Hearsay

It should be noted that the rule against hearsay evidence has got an exception. This is because
the practice has shown that total exclusion of hearsay might lead to injustice. As a result,
series of exceptions were developed through common law and embodied in the Evidence Act,
section 30 (a) to (h).

Under section 30 of the Act Statements, written or verbal, of relevant facts made by a person
who is dead, or who cannot be found, or who has become incapable of giving evidence, or
whose attendance cannot be procured without an amount of delay or expense which in the
circumstances of the case appears to the court unreasonable, are themselves relevant.

In Thornhill V Thornhill [1965] EA 268 the trail judge of the lower court was of the view
that air travel is very rapid and so the witness could fly in and the cost and inconvenience of
bringing the witness form the United Kingdom would not be great in this era of quite
inexpensive travel.
On appeal, judges agreed that air travel is rapid but not inexpensive and could cause serious
financial embarrassment and hardship to the parties. They thus held that the judge
misdirected himself in dismissing the application that he should have been granted both on
the ground of inconvenience and expense and on the ground that the court would not be likely
to derive any advantage from the presence of the witness.

Specific exceptions to hearsay evidence

Dying declaration

59
It’s provided for under section 30 (a) of the Evidence Act which provides that when the
statement is made by a person as to the cause of his or her death, or as to any of the
circumstances of the transaction which resulted in his or her death, in cases in which the
cause of that person’s death comes into question and the statements are relevant whether the
person who made them was or was not, at the time when they were made, under expectation
of death, and whatever may be the nature of the proceeding in which the cause of his or her
death comes into question.

A dying declaration is a statement which is uttered by a deceased person the purpose of

which is to establish the cause of death of that person. Ordinarily, the statement would
amount to hearsay but it’s admitted as one of the exceptions. Its admission is premised on the
fact that “a man shall not meet his maker with a lie in his mouth ” the assumption is that
because of the impending death, the person is caught in the circumstances which almost
resemble the taking of an oath upon cross-examination.

Difference between dying declaration under Uganda Evidence Act and Common Law

a. Under common law, the dying declaration is only admissible in evidence where the
matter involves murder or manslaughter. However, the evidence Act a dying
declaration is relevant in cases in which the cause of death comes into question
whatever may be the nature of the proceedings in which cause of death comes into
issue i.e. it’s not confined to only murder or manslaughter.

b. Under common law, a dying declaration is only admissible if the deceased was under
a hopeless expectation of death. In R V Woodcock (1789), Justice Eyre noted that the
deceased must have lost all hope of living that if at least he had a chance however
remote, then it cannot be admitted. The rationale being to make sure that ii is the
moral and spiritual compulsion which has taken over and that therefore the person
doesn’t tell lies. Whereas under the Act, it’s admissible even if the deceased had a
chance of living.

Elements of a valid dying declaration

a. A child of tender years is not capable of making a valid dying declaration. In R V

Pike court decided that a child of tender age could not make a dying declaration. His
statement was incompetent as a dying declaration because the maker was not capable
of giving evidence in court as a witness.

b. Death must be proved for the dying declaration should be valid. In People v. Maria
(1940) 2 359 Ill. 231, 194 N.E. 510 (1935) a statement in that case was dictated by
police officers and signed by the declarant. Although it recited that the declarant
believed he was about to die and that he had no hope of recovery, there was no
evidence that a physician told him so. He asked for a physician prior to the statement
but did not request a priest until about an hour after the statement was made.

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 The Illinois Supreme Court held that the dying declaration should not have been
admitted, since there was not an adequate showing that the declarant had lost hope of
recovery. The fact that others around the wounded man did not believe he could
survive was irrelevant.

c. The dying declaration should be complete to be valid. It means that deceased must
have said all that he needed to say about the circumstances of death or its cause. If the
death interrupted his statement, it would not be taken as a complete statement reason
being that he could have added something which might change his earlier statement.

In Waugh V R [1956] AC 203 the deceased was allegedly shot by the appellant.
Before he died, he was found conscious and said that he was shot innocently but when
he was about to give the reason why the appellant had a grudge against him, he fell
into a coma from which he never recovered.

The issue was whether his statement was admissible as a dying declaration and it was
held that it could not be admitted because on its place, it was incomplete and no one
could tell what he was about to add.

See R v Charles Daki s/o Daki [1960] 1 EA 34 (HCU

d. The dying declaration should be a free expression of the deceased. He should not be
asked leading questions but must be left to make the statement freely. i.e. if he has a
recorded statement, the actual words used should be adduced in court and not just an
interpretation or translation. Dying declaration is the statement made by maker not
translator.

e. The declaration should be corroborated by other evidence since there is requirement

for the person to be in eminent expectation of death. The only way of securing
truthfulness of the dying declaration is where they are corroborated. In Pius Jasunga
S/O Akumu V. R (1954) 21 EACA 331 it was held that court had examined the
decisions of the Court on the subject of dying declarations since 1935 and established
that a conviction cannot stand based upon a dying declaration without satisfactory
corroboration.

It should be noted that there is requirement that the deceased must have made the statement
immediately before the death. Under the section, the statement is relevant whether the person
who made it was not at the time of making it under expectation of death and courts have
interpreted this to mean that there is no requirement for immediacy of death. In R V
Kabateleine (1946) 13 EACA 164 Two days before the deceased was burnt to death, she had
made a statement to her head man that the accused had threatened to burn her in her house
because she had caused the death of her father by witchcraft.

The issue was whether the statement to the headman made two days before was a rightly
admissible dying declaration as it was directly related to the occasion of the death of the
deceased. Court held that the time at which the statement was made was immaterial. The
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statement was admissible because it explains the cause of death that at the time it was made it
was not simply a general expression indicating fear or suspicion but one directly relating to
the occasion of death.

However, in Barugahare V R [1957] EA 149 a period of six months had elapsed thus court
had rejected a statement made as a cause of fear to the deceased holding that there must be a
proximate relationship between the statement made and the death itself. In this case, it was a
mere fear of death thus inadmissible.

Statement made in the ordinary course of business

Under section 30 (b) of the Act, when the statement was made by such person in the ordinary
course of business, and, in particular, when it consists of any entry or memorandum made by
him or her in books kept in the ordinary course of business or in the discharge of professional
duty, or of an acknowledgment written or signed by him or her of the receipt of money,
goods, securities or property of any kind, or of a document used in commerce written or
signed by him or her, or of the date of a letter or other document usually dated, written or
signed by him or her, is admissible as an exception to the rule against hearsay evidence.

The underlying principle to admit this statement is to be found in the latin maxim “ante litem
motam” meaning that the statement or declaration must have been made before the dispute
arose. Section 30 (b) is closely related to section 32 which provides that Entries in books of
account, regularly kept in the course of business, are relevant whenever they refer to a matter
into which the court has to inquire, but such statement shall not alone be sufficient evidence
to charge any person with liability.

The case of Republic v Masalu [1967] 1 EA 355 discusses what amounts to statements
made in ordinary course of business.

The accused was charged with murder. The prosecution sought to produce in evidence a post-
mortem report on the deceased made by a doctor who had since left the country.

Court noted that the section seeks to provide a method where, by virtue of death or other
circumstances, when the only evidence is a document, that document should be admitted in
evidence. The safeguards under section are that the document should have been made in such
circumstances that in the normal way of things mistakes would not occur, and that there
would not be any reason why the maker of the document should state anything but the truth.

The case of Gichunge v Republic [1972] 1 EA 546 the appellant stabbed the deceased in the
chest causing a collapse of the left lung. The deceased was discharged from hospital, but was
readmitted a week later and died of pneumonia and tetanus. The doctor’s report as to cause of
death was admitted under the Evidence Act Kenya without the doctor being called as he had
left the country and the statement had been made in the discharge of professional duty. On

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this evidence it was found that the appellant caused the deceased man’s death and he was
convicted of murder.

Court noted that a statement admitted in evidence under the Evidence Act is admissible only
as to the facts therein stated. The opinions of the doctor were inadmissible and could not be
looked at for any purpose.

Statement made by a person with an interest in the subject matter and making it against
himself.

Its provided for under section 30 (c ) of the Act which states that when the statement is
against the pecuniary or proprietary interest of the person making it, or when, if true, it would
expose him or her or would have exposed him or her to a criminal prosecution or to a suit for
damages, it is admissible.

It must however be proved that at the time of making the statement, the maker was aware of
the consequences i.e. the maker must be aware that the statement will affect his interest. In
DIAS v R a letter was written by one Thomas, to the effect that the accused had instructed
him to pay false pay sheets (ghost employees). It came out at the trial that when Thomas
wrote that letter, he only intended to be promoted at work.

Court held that much as it exposed him to criminality and was against his own interest, he
made it without full knowledge of its consequence except for purposes of advancement at
work.

In R v O’Brian the two O’Brian and Jensen were charged with possession of narcotic.
O’Brian was charged and Jensen fled the country. After O’Brian conviction, Jensen returned
and made a statement to the authorities that he alone was the perpetrator of the crime. He died
thereafter. O’Brian applied for review of the deceased’s confession.

Court rejected holding that the maker was already aware of the proceedings and that the
statement would have been calculated to save his friend.

Pedigree relations or family affairs

Under section 30 (d) of the Act when the statement gives the opinion of any such person as to
the existence of any public right or custom, or matter of public or general interest, of the
existence of which, if it existed, he or she would have been likely to be aware, and when that
statement was made before any controversy as to the right, custom or matter had risen is
admissible.

Section 30 (e ) of the Act provides that when the statement relates to the existence of any
relationship by blood, marriage or adoption between persons as to whose relationship by
blood, marriage or adoption the person making the statement had special means of
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knowledge, and when the statement was made before the question in dispute was raised is
admissible.

Under section 30 (f) of the Act when the statement relates to the existence of any relationship
by blood, marriage or adoption between persons deceased, and is made in any will or deed
relating to the affairs of the family to which any such deceased person belonged, or in any
family pedigree, or upon any tombstone, family portrait or other thing on which such
statements are usually made, and when the statement was made before the question in dispute
was raised is admissible. In Haines V Gutthrie (1884) 13 QDB 818 this was a suit for the
price of goods sold. The defendant who at the time of the sale was an infant could not be held
liable in law.

The issue before court was the defendant’s date of birth and for him to prove his infancy he
brought an affidavit sworn by his father in another matter where he had put down the date of
birth of the defendant. Court rejected this statement on grounds that it could not establish the
relationship of family descent.

Under section 30 (g) of the Act states that when the statement is contained in any deed, will
or other document which relates to any such transaction as is mentioned in section 12(a) is
admissible.

Under section 30 (h) of the Act when the statement was made by a number of persons, and
expressed feelings or impressions on their part relevant to the matter in question is
admissible.
Note;
It should be noted that the exceptions may cover all statements provided under sections 31 to
42 of the Evidence Act.

OPINION EVIDENCE

An opinion is a statement as to what a person thinks about an alleged fact as to whether it

took place or not, who caused it or why it happened and so on. Matters of opinion are
conclusion or inferences drawn by a person in reference to particular instances. Witnesses are
usually invited to testify in court whenever it is necessary to give testimonial evidence. When

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this is done, witnesses are expected to give of facts as they perceive them and not to give
conclusion that they made.

The general rule is that opinions of witnesses as to the existence of a fact in issue or relevant
fact are inadmissible and some of the major reasons for exclusion are as follows;

a. A witness opinion will most likely be partial to a party.

b. It is most likely be influenced by matters of hearsay.

However, as all general rules, opinion evidence has exceptions where in some instances it
will be admissible. The exceptions are covered under sections 43 to 49 of the Evidence Act
Cap 6.

Under the law, two categories of opinion are admitted as an exception;

 The opinion of the expert called expert evidence

 Opinion of ordinary witnesses or non-expert evidence.

Expert opinion

Under section 43 of the Act it is provided that when the court has to form an opinion upon a
point of foreign law, or of science or art, or as to identity of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in that foreign law,
science or art, or in questions as to the identity of handwriting or finger impressions, are
relevant facts. Such persons are called experts.

Who is an expert?

It’s the court to determine who an expert is and in so doing, court considers a number of
things as follows;

1. Educational background. Ordinarily, a person will be judged as an expert if he or she

has an educational background which enables him become conversant with what is
expected to be testified upon. Before the evidence is taken, the qualification must first
be put on record. In R v Silverlock [1894] 2 QB 766 the court must be satisfied that
the individual has sufficient knowledge or expertise to qualify as an expert.

Expert witness may not necessarily have formal training in areas they testify upon.
Thus, a person presented as an expert may not be an expert or profession in the
professional sense of the word. Such a person may just be skilled or experienced in
the branch of knowledge concerned even through the exercise of such skills or
acquisition of such knowledge is not part of his or general education. In Gatheru s/o
Njagwara v R (1954)21 EACA384, 385 the accused was charged with unlawful
possession of a firearm. A police officer gave evidence where he simply described
himself as an inspector of police attached to the Criminal Investigation Department of

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 Nanyuki. He did not tell the court how long he had perfected his duties, whether he
had seen or examined any hand-made weapon other than those seized in the course of
the operation leading to the arrest of the accused. The issue on appeal was whether the
evidence of such a person was admissible as expert evidence. The court observed „we
think that such specific skill is not confined to knowledge acquired academically but
would also include skills acquired by practical practise...but even so, his competency
as an expert shall in all cases be shown before his testimony is properly admissible‟.

Experience in this case means that a person will have been active in that field for quite
some time. However, the period for which the person is required to be active is
relative. It depends on the circumstances of the case.

Role of an expert

An expert is said to assist court in making an inference. It’s a requirement of the law that
whenever an expert gives an opinion, he or she must give the reasons for that opinion and in
the absence of such reasons, the opinion will be rejected by the court.

Under section 44 of the Act, it is provided that facts, not otherwise relevant, are relevant if
they support or are inconsistent with the opinions of experts, when those opinions are
relevant. If there are other facts inconsistent with expert opinion then they are relevant.

In R v Silverlock [1894] 2 QB 766 discussed skilled to involve one of the issue of

handwriting. In that case, the solicitor was called to testify. He had been in the habit of
perusing all parish registers Wills drafted by various individuals. An objection was raised as
to the ability of a solicitor to testify as a handwriting expert since he had no formal
knowledge and/or training in such matters.

Court allowed the solicitor to give his testify stating that his experience in perusing
documents partly in profession and partly in private enabled him to acquire experience in
handwriting although he had no formal education in that field.

Evidence of Opinion of witnesses possessing peculiar skills is admissible whenever the

subject matters is such that inexperienced persons are unlikely to prove capable of forming a
correct judgment upon it without such assistance.

Opinion of skilled witnesses cannot be received when the inquiry relates to subject which
does not require any peculiar habits or course of study to qualify a person to understand it.

It should be noted that evidence of opinion of an expert must be given orally and not through
a report.

Value of expert evidence

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Opinion of an expert is not binding upon court and the court has the discretion whether or not
to accept or reject that evidence. An expert is called upon to assist the court in matters that
the court is not too well equipped to make a decision on. The expert does not take the role of
the court and so the courts should not abdicate their responsibility to the experts.

In Kit smile Mugisha v Uganda Criminal Appeal, No. 78 of 1976, the court stated that
expert evidence is just opinion and should not take the place of substantive evidence. The
court only decides an issue upon such assistance which the expert offers. The court forms its
own opinion on the subject matter at hand.

In the case of Hassan v Salum 1964) EA 172 it was opined that the court should not rely on
expert evidence as they may also make mistakes. This way, the court is not bound by expert
opinion

Non-Expert Evidence

Non-expert evidence is adduced in the following;

 Under section 45 of the Act, when the court has to form an opinion as to the person by
whom any document was written or signed, the opinion of any person acquainted with
the handwriting of the person by whom it is supposed to be written or signed that it
was or was not written or signed by that person is a relevant fact.

Acquaintance means that the witness has seen that person write or when he has
received documents purporting to written by that person in answer to documents
written by himself or under his authority and addressed to that person or partly when
in ordinary course of business documents purporting to be written by that person have
been habitually submitted to him.

 Under section 46 of the Act when the court has to form an opinion as to the existence
of any general custom or right, the opinions as to the existence of that custom or right,
of persons who would be likely to know of its existence if it existed, are relevant. The
expression “general custom or right” includes customs or rights common to any
considerable class of persons.

 Section 47 provides When the court has to form an opinion as to the usages and
tenets of any body of men or family; the constitution and government of any religious
or charitable foundation; or the meaning of words or terms used in particular districts
or by particular classes of people, the opinion of persons having special means of the
knowledge thereon are relevant facts.

 Opinion on relationship, when relevant is provided for under section 48 of the Act.

CHARACTER EVIDENCE

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This area is covered under section 50 to 53 of the Evidence Act. The Act does not define
what character is but provides for the explanation on what it entails. The word character
includes both reputation and disposition. Character should be given as the general disposition
and general reputation of the person and not of particular acts like which reputation or
disposition were shown.

Disposition refers to tendency of a person to act or behave in a particular way while

reputation refers to the opinion of the member of the public about a particular person.
Reputation should be an aggregate opinion of all ideas of members of the public.

General principles on character evidence

As a general rule, character evidence is not admissible. However, there are a number
exceptions but admissibility will depend on two issues viz;

 The nature of the case i.e. is it a criminal or civil case. The rules differ.

 The nature of the parties, i.e. against whom character is sought to be adduced e.g.
character of an accused or complainant.

Character with reference to an accused person

According to section 51 of the Act, in criminal proceedings the fact that the person accused is
of a good character is relevant. It is argued that the provision is in line with the constitution
doctrine of presumption of innocence. However, where character is given pursuant to section
51, it must be related to the offence charged. But if the offence is to be with honest, should
adduce evidence of honesty.

Good character is adduced to mitigate the sentence. For good character see Yowana
Settumba v R [1957] 1 EA 35 where court held that evidence of good character is always
relevant and admissible if the accused chooses to put his character in issue: a fortiori if the
prosecution has been permitted to lead evidence tending to show that he is a man of bad
character.

Under section 52 of the Act in criminal proceedings, subject to section 133(2) of the
Magistrates Courts Act and section 98 of the Trial on Indictments Act, the fact that an
accused person has a bad character is irrelevant. It is argued that if such evidence is taken
straight away, it would tantamount to the guilt of an accused person.

Evidence of bad character is only relevant under four exceptions;

a. Where evidence has been given or a question or questions asked by the accused
person or his or her advocate for the purpose of showing that he or she has a good
character. R v Rowton (1865) Le & Ca 520 at 529; 169 ER 1497; [1865] All ER
Rep 549 Rowton was charged with indecent assault upon a 14 year old. He called
several witnesses who had known him at different periods of his life. They gave him a
decent character of a good man. Prosecution adduced evidence where it was stated
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 that the witness knew the accused and that in his opinion and that of the brothers who
were also pupils was that the accused character was that of a man capable of gross
indecency and a man with most pronounced immorality. It was held that evidence of
good character is given on behalf of the accused and then of bad character is given in
reply. In this case the evidence must be confined to the accused’s general reputation
and that the individual opinion of a witness as to the accused’s disposition founded
upon his own experience and observation was inadmissible. See Stirland v Director
of Public Prosecutions HL ([1944] AC 315.

b. Where the proof that he or she has committed or been convicted of another offence is
admissible evidence to show that he or she is guilty of the offence with which he or
she is charged. See R v Rodley [1911 – 13] AllER Rep 688; [1913] 3 KB 468 the
accused was indicted for having in the night time broken into and entered a dwelling
house with intent to ravish a woman. At the trial the defense argued that prosecution
failed to prove that he entered the house to ravish her. Prosecution then adduced
evidence that the appellant at about 2 a.m. on the same morning went to the house
with another woman which was about three houses away from the complainant’s
house. That he gained access to her bedroom and that with her consent he had
connection with her. It was held that the evidence was admissible to show the state of
the appellant’s state of mind and body at the time when he broke into the
complainant’s house. That this evidence coupled with what happened when he was in
her house was admissible to show the intent with which he broke into the house. See
R v Fisher [1910] 1 KB 149

c. Where the nature or conduct of his or her defence is such as to involve imputations on
the character of the complainant or the witnesses for the prosecution.

d. Where he or she has given evidence against any other person charged with the same
offence as that with which he or she is charged. See R V Bruce (1975) 1 WLR 1252

Character evidence in civil cases

The character may either be for the plaintiff, defendant or witness. Under section 50 of the
Evidence Act, in civil cases the fact that the character of any person concerned is such as to
render probable or improbable any conduct imputed to him or her is irrelevant, except insofar
as that character appears from facts otherwise relevant.

The character of the plaintiff is irrelevant except in particular cases e.g. cases of breach of
promise to marry where the character of the plaintiff may come. If the plaintiff sues that the
defendant for breach of promise to marry, where it is shown that the character of the plaintiff
is bad, and the defendant may have a mitigating factor.

The character of a person may be adduced to help court in mitigating of damages. Likewise,
it may be adducible to enable court to avoid exemplary damages/punitive damages.
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The character may also be adducible to show that a particular instance of bad behavior was
not an accident but part of way of conduct. In Scott v. Sampson (1882), 8 Q.B.D. 491,
[1881-1885] All E.R. Rep. 628 the court held that evidence of general bad reputation was
admissible to mitigate a plaintiff’s damages claim for loss of reputation but evidence of
particular acts of misconduct was not. However, a defendant who intends to lead evidence of
a plaintiff’s general bad reputation must plead the particulars of that claim, which often will
include particular instances of bad conduct. If the particulars relate to an aspect of the
plaintiff’s general reputation that is relevant to the alleged defamatory comments, they may
be pleaded; if they are unrelated they will be inadmissible as irrelevant.

To enable the court to estimate the probable quantum of injury sustained, knowledge of the
party’s previous character is not only material but seems to be absolutely essential. On
principle, it would seem that general evidence of reputation should be admitted.

In the defendant’s case, the character of the plaintiff is very relevant as to whether he had a
reputation to lose or not.

The character of the Defendant is relevant under sections 50 and 54 of the Act. Character is
relevant in civil cases arising out of adultery where the petitioner sues adulterer and co-
adulterer. In such a case, the character of the party may be relevant either in establishing the
damages payable or completely absolving the defendant from the damages.

It’s the general rule that character of the defendant may not depend on whether he has been
convicted of a criminal offence. The issues in civil cases are different from those in criminal
cases. This was the position in Hollington v. F. Hewthorn & Co. [1943] 1 KB 587 where
it was held that a criminal conviction could not be admitted into evidence in a subsequent
civil proceeding as proof of the facts of the conviction. In this case, the defendant a driver of
a vehicle was convicted for careless driving which led to the death of the plaintiff’s son. The
plaintiff sought to rely on the criminal conviction in proof of his claim.

It appears this position has been overruled in most jurisdictions.

The character of a witness is not relevant in both criminal and civil proceedings. However,
both sides may tend to discredit the credibility of a witness as a matter of winning their side.
Witnesses are subjected to scrutiny to establish whether they ate talking the truth and this
could involve an examination of their character. Since a party to litigation is normally a
witness, his character will be tasted like any other witness. Under section 53 of the Act, in
criminal proceedings an accused person giving evidence may be asked any question in cross-
examination that would tend to incriminate him or her as to the offence with which he or she
is charged.

Section 154 of the Act provides for the impeachment of credibility of a witness and provides
that the credit of a witness may be impeached in the following ways by the adverse party, or
with the consent of the court, by the party who calls him or her as follows;

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  By the evidence of persons who testify that they, from their knowledge of the witness,
believe him or her to be unworthy of credit;

 By proof that the witness has been bribed, or has accepted the offer of a bribe, or has
received any other corrupt inducement to give his or her evidence;

 By proof of former statements inconsistent with any part of his or her evidence which
is liable to be contradicted;

 When a man is prosecuted for rape or an attempt to ravish, by evidence that the
prosecutrix was of generally immoral character.

Note under explanation that a witness declaring another witness to be unworthy of credit may
not, upon his or her examination-in-chief, give reasons for his or her belief, but he or she may
be asked his or her reasons in cross-examination, and the answers which he or she gives
cannot be contradicted, though, if they are false, he or she may afterwards be charged with
giving false evidence.

It should be noted that section 153 of the Act provides that the court may allow or permit the
person who calls a witness to put any question to him or her which might be put in cross-
examination by the adverse party.

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DOCUMENTARY EVIDENCE

Under this sub-topic, the following areas shall the covered;

a. Classification of the documents which determines the mode of its truth in court.

b. Proof of execution i.e. how to prove the document

c. Specific rules as to the proving of the contents of the documents.

d. The presumption that underlies various documents

e. Whether other evidence may be adduced to prove the content of a document.

What is a document

Section 2 (1) (d) of the Act defines 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.

Under section 2 (1) (c) defines documentary evidence to mean all documents produced for
the inspection of the court.

Under the evidence law, the word document means much more than its ordinary meaning i.e.
it won’t refer only to things put on paper but even sign posts, tape recording. In another of
court decision, it has been held that tape record were admissible in evidence. The case of
Uganda v Everesto Nyanzi where a tape was held to be documentary evidence.

Classification of documents

The way documents are classified determines whether or not it’s admissible. There are three
main types of classifications;

1. Attested documents as opposed to unattested. The term attested means witnessing

any act or event and with regard to documents it means witness the signing or
execution of a document. Certain documents are required by law to be attested. E.g. a
will under the succession Act, Land transfer under the Registration of Titles Act,
Power of Attorney. These are referred to as attested documents. The attestation
confers validity of such documents. Non attestation renders the documents invalid.

Under section 67 of the Act, 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
purpose of proving its execution, if there is an attesting witness alive, and subject to
the process of the court and capable of giving evidence.

Unattested documents are those documents which are not required by law to be
attested in order to be valid. Under section 71 of the Act, an attested document not
required by law to be attested may be proved as if it were unattested.

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2. Private as opposed to public documents. Section 73 of the Act provides for the list of
those documents that are considered to be public documents to include;

a. Documents forming the acts or records of the acts

i. of the sovereign authority;

ii. of official bodies and tribunals;

iii. of public officers, legislative, judicial and executive, whether of

Uganda, of any other part of the Commonwealth, of the Republic of
Ireland or of a foreign country;

b. Public records kept in Uganda of private documents.

In the case of Tootal Broadhurst Lee Co. Ltd v. Ali Mohammed [1954] 24
K.L.R 31 this was a case for damages for infringement of a design registered in
Great Britain. The Plaintiff relied on a document bearing the seal of the patent
office of Great Britain purporting it to be a copy of the certificate of registration
of the design. Two questions arose, was the document a public document which
could be proved through certified copies? Whether you would need to have the
document itself or did a certified copy suffice. The court held that the certificate
of registration being a document issued by authority of law, by a public officer is
necessarily a public document. Secondly, that a certificate of registration does
not come within the category of public documents which can be proved with
means of certified copies. Essentially what the court was ruling is that this was
not a public document within the meaning of S. 80(1) and could not be proved by
a certified copy

Under section 74 all documents, other than those specified in section 73, are
private. It should be noted that a private document may be rendered to be public.
The Registration of Documents Act Cap 81 appears to render a formally private
document public ounce registered. The case of Kafeero v Turyagyenda where the
issue was whether there was a partnership. This case discusses how the private
document can be rendered public.

It should be noted that registration under the Registration of Documents Act are
not mandatory but voluntary. Failure register the document does not render it
void. There is no time frame within which a document should be registered. See
the case of Kalid Walusimbi v Jamil Kaaya.

3. Primary as opposed to secondary document covered under section 60 of the Act the
contents of documents may be proved either by primary or by secondary evidence.
Section 61 defines primary evidence of a document to mean Primary evidence to

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mean the document itself produced for the inspection of the court. The section gives
the explanation of what may be termed primary and secondary.

Under explanation 1, where a document is executed in several parts, each part is

primary evidence of the document. Where a document is executed in counterpart,
each counterpart being executed by one or some of the parties only, each counterpart
is primary evidence as against the parties executing it.

Under Explanation 2, where a number of documents are all made by one uniform
process, as in the case of printing, lithography or photography, each is primary
evidence of the contents of the rest; but where they are all copies of a common
original; they are not primary evidence of the contents of the original.

See the case of Director of Public Prosecutions of Tanzania v Akber Rashid

Nathani [1966] 1 EA 13 which discusses the difference between primary and
secondary. In this case court held that loose leaf cyclostyled volume was apparently
produced by a process capable of making many other documents uniform with the
leaves of the volume produced in evidence; consequently, it was admissible as an
original by virtue of s. 62 of the Evidence Act of Tanzania.

In this case the respondent was the proprietor of a travel agency with two branches,
one in Zanzibar and the other one in Dar es salam. Where one branch was approved
the other one was not approved to issue air tickets. The respondent was charged and
convicted with intent to deceive the air ticket. One of the witness testified that the
Dar es salam office had not been approved by I.A.T.A, on appeal the High Court held
that the loose leaf cyclostyled volume was not an original document and that no
circumstances had been proved which entitle the prosecution to give secondary
evidence, the volume was inadmissible. It further held that, the fact that the
respondent’s Dar es salam office did not appear on the agency list could not be
proved as oral evidence.

Secondary evidence is defined under section 62 of the Evidence Act to mean and
include;

a. Certified copies given under the provisions hereafter contained;

b. Copies made from the original by mechanical processes which in themselves

ensure the accuracy of the copy, and copies compared with those copies;

c. Copies made from or compared with the original;

d. Counterparts of documents as against the parties who did not execute them;

e. Oral accounts of the contents of a document given by some person who has
himself or herself seen it.

Proof of execution of documents

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Section 63 of the Act lays down the rule on proof of the document where documents
must be proved by primary evidence except in the cases hereafter mentioned. The
aspect of proof is very important because before the document id admitted in
evidence; it must be proved that it is genuine, and duly executed by the person who
appears on the face of the document as signatories. See

Public document

Under section 75 of the Act, every public officer having the custody of a public
document, which any person has a right to inspect, shall give that person on demand
a copy of it on payment of the legal fees for the copy, together with a certificate
written at the foot of the copy that it is a true copy of that document or part of the
document, as the case may be, and the certificate shall be dated and subscribed by the
officer with his or her name and official title, and shall be sealed whenever the officer
is authorised by law to make use of a seal, and the copies so certified shall be called
certified copies.

Under the Explanation, any officer who, by the ordinary course of his or her official
duty, is authorised to deliver such copies shall be deemed to have the custody of
those documents within the meaning of this section.

Section 76 of the Act provides that such certified copies may be produced in proof of
the contents of the public documents or parts of the public documents of which they
purport to be copies.

Section 77 of the Act provides for other public documents and the manner in which
they should be proved by certified copies, documents printed by order of
government, publications on orders of government.

The documents by common wealth or foreign government may also be proved by

journals published by those governments.

Proof of attested document

Under section 67 of the Act 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
purpose of proving its execution, if there is an attesting witness alive, and subject to
the process of the court and capable of giving evidence.

Where the attesting person cannot be found, section 68 of the Act provides that if no
such attesting witness can be found, it must be proved that the attestation of one
attesting witness at least is in his or her handwriting, and that the signature of the
person executing the document is in the handwriting of that person.

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Under section 69 of the Act, the admission of a party to an attested document of its
execution by himself or herself shall be sufficient proof of its execution as against
him or her, though it is a document required by law to be attested.

Under section 70 of the Act, if the attesting witness denies or does not recollect the
execution of the document, its execution may be proved by other evidence.

According to section 90 of the Act, when any document, purporting or proved to be

thirty years old, is produced from any custody which the court in the particular case
considers proper, the court may presume that the signature and every other part of
that document, which purports to be in the handwriting of any particular person, is in
that person’s handwriting and, in the case of a document executed or attested, that it
was duly executed and attested by the persons by whom it purports to be executed
and attested.

In the explanation, documents are said to be in proper custody if they are in the place
in which, and under the care of the person with whom, they would naturally be; but
no custody is improper if it is proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to render such an origin probable.

Proof of unattested document

Unattested document is proved under section 71 of the Act which states that an
attested document not required by law to be attested may be proved as if it were
unattested. According to section 72 of the Act, the court is empowered to compel any
person to give a sample of signature for purposes of proving handwriting.

General rule in proof of documents

The general rule as stated in section 63 of the Act is that documents must be proved
by primary evidence except in the cases hereafter mentioned. In otherwards, the any
person intending to rely on a document is required to exhibit an original document
itself.

Rational to the general rule under section 63

It has been argued that the rule that the document must be proved by primary
evidence is based on the best evidence rule. In the case of Omychund v Barker
(1745) 1 Atk, 21, 49; 26 ER 15, 33. Lord Harwicke stated that no evidence was
admissible unless it was "the best that the nature of the case will allow".

Previous, the rule developed in the eighteenth century, when pretrial discovery was
practically nonexistent and manual copying was the only means of reproducing
documents.

According to Allan L. Fink in his recommendation on cited as “Best Evidence Rule,

26 Cal. L. Revision Comm’n Reports 369 (1996)”, in the last three decades,
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 broad pretrial discovery has become routine, particularly in civil cases.
Technological developments such as the dramatic rise in use of facsimile
transmission and electronic communications pose new complications in
applying the Best Evidence Rule and its exceptions. The rationale for the rule no
longer withstands scrutiny.

The exceptions to the application of the best evidence rule are contained in section
64 of the Act

Section 64 contains all the important exception to the rule and states that secondary
evidence may be given in the following ways;

when the original is shown or appears to be in the possession or power of the person
against whom the document is sought to be proved, or of any person out of reach of,
or not subject to, the process of the court, or of any person legally bound to produce
it, and when, after the notice mentioned in section 65, that person does not produce it;

when the existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved or by his or her
representative in interest;

a. When the original has been destroyed or lost, or is in the possession or power
of any person not legally bound to produce it, and who refuses to or does not
produce it after reasonable notice, or when the party offering evidence of its
contents cannot, for any other reason not arising from his or her own default
or neglect, produce it in reasonable time.

b. When the original is of such a nature as not to be easily movable.

c. When the original is a public document.

d. When the original is a document of which a certified copy is permitted by this

Act, or by any other law in force in Uganda, to be given in evidence.

e. When the originals consist of numerous accounts or other documents which

cannot conveniently be examined in court and the fact to be proved is the
general result of the whole collection.

Presumptions as to the genuineness of documents in evidence

Sections 77 to 90 of the evidence Act provides for documents presumed to be genuine for
purposes of evidence. These include;

a. Document purporting to be a certificate, certified copy or other document, which is by

law declared to be admissible as evidence of any particular fact, and which purports to
be duly certified by any officer in Uganda, to be genuine if the document is
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 substantially in the form and purports to be executed in the manner directed by law in
that behalf. The court shall also presume that any officer by whom any such document
purports to be signed or certified held, when he or she signed it, the official character
which he or she claims in that paper.

b. Document produced before any court, purporting to be a record or memorandum of

any evidence given in a judicial proceeding or before any officer authorised by law to
take evidence, required by law to be reduced to writing, and purporting to be signed
by any judge or magistrate, or by any such officer as aforesaid, the court may presume
that the document is genuine and that the evidence recorded was the evidence actually
given; may take oral evidence of the proceedings and the evidence given; and shall
not be precluded from admitting any such document merely by reason of the absence
of any formality required by law; provided always that an accused person is not
injured as to his or her defence on the merits.

c. Document purporting to be the Gazette, or the Government Gazette of any country of

the Commonwealth, or to be a newspaper or journal, or to be a copy of a private Act
of Parliament printed by a government printer or in any of the manners mentioned in
the Documentary Evidence Act, 1882, of the United Kingdom, and of every document
purporting to be a document directed by any law to be kept by any person, if the
document is kept substantially in the form required by law and is produced from
proper custody.

d. Document produced before any court, purporting to be a document which, by the law
in force for the time being in the United Kingdom or the Republic of Ireland, would
be admissible in proof of any particular in any court of justice in the United Kingdom
or the Republic of Ireland, without proof of the seal or stamp or signature
authenticating it, or of the judicial or official character claimed by the person by
whom it purports to be signed, the court shall presume that the seal, stamp or
signature is genuine, and that the person signing it held, at the time when he or she
signed it, the judicial or official character which he or she claims.

e. Maps or plans purporting to be made by the authority of the Government were so

made and are accurate.

f. Book purporting to be printed or published under the authority of the government of

any country, and to contain any of the laws of that country, and of every book
purporting to contain reports of decisions of the courts of that country.

g. Documents purporting to be executed out of Uganda were so executed and were duly
authenticated if;

i. In the case of such a document executed in the United Kingdom, it purports to

be authenticated by a notary public under his or her signature and seal of
office;

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 ii. In the case of such a document executed (elsewhere than in the United
Kingdom) in the Republic of Ireland or in any country of the Commonwealth
outside Africa, it purports to be authenticated by the signature and seal of
office of the mayor of any town or of a notary public or of the permanent head
of any government department in the Republic of Ireland or in any such
country of the Commonwealth;

iii. In the case of such a document executed in any country of the Commonwealth
in Africa, it purports to be authenticated by the signature and seal of office of
any notary public, resident magistrate, permanent head of a government
department, or resident commissioner or assistant commissioner in or of any
such country; and, in addition, in the case of a document executed in Kenya, it
purports to be authenticated under the hand of any magistrate or head of a
government department;

See the sections.

Parole Evidence Rule/Exclusion of oral evidence by documentary evidence

The main question is whether oral evidence may be produced to prove the terms contained in
the document. The general rule is that where there is a written document, other evidence to
substitute or vary the terms of the document is not admissible. The principle operates in tow
situations;

a. Where a contract has been reduced in writing, the terms must be proved by reference
to the document itself.

b. The transaction required to be in writing by law must be in writing. E.g. According to

section 10 (5) of the Contract Act No. 7 of 2010 a contract the subject matter of
which exceeds twenty five currency points shall be in writing. Subsection 6 of the
same Act further states that a contract of guarantee or indemnity shall be in writing.

Parol evidence Rule

The parol evidence rule is a substantive common law rule in contract cases that prevents a
party to a written contract from presenting extrinsic evidence that discloses an ambiguity and
clarifies it or adds to the written terms of the contract that appears to be whole

According to section 90 of the Evidence Act when the terms of a contract or of a grant, or of
any other disposition of property, have been reduced to the form of a document, and in all
cases in which any matter is required by law to be reduced to the form of a document, no
evidence, except as mentioned in section 79, shall be given in proof of the terms of that
contract, grant or other disposition of property, or of such matter except the document itself,
or secondary evidence of its contents in cases in which secondary evidence is admissible
under the provisions hereinbefore contained.

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Rational for the rule

The parol evidence rule treats formal written documents created by parties as reflective of
their true intentions regarding which terms are meant to be included in the contract. In doing
this, it assumes that duties and restrictions that do not appear in the written document, even
though apparently accepted at an earlier stage, are not intended by the parties to survive.

Exceptions to the parol evidence rule

The exceptions are provided under sections 91 and 92 of the Evidence Act

BURDEN AND STANDAED OF PROOF

The law of evidence has formulated certain rules that may be followed in order to establish
liability or otherwise of a party to the proceedings. The general being that all facts must be
proved and thus the law prescribing the following;

 What fact may be proved?

 Who has to prove certain facts.

 What is the procedure for proving such facts.

The effect of the three attributes leads to what we call burden of proof.

Generally, the term burden of proof denotes the obligation to prove a fact or facts. The
obligation may mean different things depending on the situation to which it is applied. The
term burden of proof is used in two different senses.

1. It may mean the duty to adduce evidence at a certain stage of the proceedings. This is
normally referred to as the evidential burden of proof i.e. sometimes called onus
probendi. This burden constantly shifts to the other party e.g. where the prosecution
adduces evidence of commission of an offence, the accused may raise the defense of
insanity and in that case the burden shifts to him in some aspects.

2. The second aspect is the burden in the primary or real sense. It has also been called
the legal burden. This means the duty to prove a case finally. In criminal cases, the
legal burden is normally on the prosecution and in civil cases; it’s the person who
asserts i.e. plaintiff.

General principles governing Burden of Proof

This is covered under section 101 to 111 of the Evidence Act.

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Under section 101 of the Act whoever desires any court to give judgment as to any legal
right or liability dependent on the existence of facts which he or she asserts must prove
that those facts exist. When a person is bound to prove the existence of any fact it is said
that the burden of proof lies on that person. The provision stems from the common law
principle that “he who asserts a matter must prove it but he who denies may not prove”.

However, in most cases the extent of burden of proof will depend on the nature of the
case and normally in civil cases a person who asserts is the plaintiff and bears the burden
to prove.

Under section 102 of the Act provides that the burden of proof in a suit or proceeding lies
on that person who would fail if no evidence at all were given on either side. Section 103
states that the burden of proof as to any particular fact lies on that person who wishes the
court to believe in its existence, unless it is provided by any law that the proof of that fact
shall lie on any particular person. The provisions herein above apply to both criminal and
civil proceedings.

In criminal cases, the burden of proof is on the prosecution in conformity with the spirit
of presumption of innocence as enshrined in the constitution of the republic of Uganda,
1995.

Burden of proof in criminal cases

The burden of proof in criminal cases was established in Woolmington v DPP [1935]
AC 462 whose facts are that Woolmington’s wife left him and went to live with her
mother. Woolmington went to his mother in law where he shot and killed his wife. He
was arrested and charged with murder. In his defense, he claimed that he did not intent to
kill her and in the process of trying to win her back, he planned to scare her by
threatening to kill himself if she did not come back. When he tried to show her the gun
he intended to use on himself, by accident the gun went off shooting her in the heart. The
trial judge concluded that Woolmington was responsible for the death of his wife. He
noted that the onus was on him to prove that the shooting was accidental. He was
convicted and sentenced to death.

He appealed to the House of Lords which held as follows;

It is the duty of prosecution to prove the prisoner’s guilt. If there is a reasonable doubt
created, the prisoner is entitled to an acquittal.

Standard of proof

This principle refers to the level of proof which a party in criminal matters ought to
discharge to secure a conviction. In criminal proceedings, the standard of proof is beyond
reasonable doubt.

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In Katimba v Uganda [1967] 1 EA 363 (HCU), the appellant was charged with two
counts of Burglary and theft as well as the alternative charge of receiving and retaining
stolen property. The trial Magistrate found that the prosecution had failed to prove
beyond reasonable doubt the charges. Instead, the magistrate convicted the appellant of
the charge of indecent assault since the victim while testifying told court that she had
been sexually assaulted by the appellant.

Sir Udo Udoma noted that after the trial Magistrate found that the prosecution had failed
to prove the charges beyond reasonable doubt on the count of Burglary and theft as well
as receiving and retaining stolen property, it was wrongful for him to find the appellant
guilty of indecent assault in the absence of corroboration.

In civil cases, the party who bears the burden has only to show that his or her case is
more probable i.e. he is more likely to be correct. In Miller v. Minister of Pensions
[1947] 2 All ER 372 Lord denning held that there was a distinction between beyond
reasonable doubt. He noted that beyond reasonable doubt does not necessarily mean
proof beyond all shadow of doubt that if that was the case, the law will fail to protect the
community if fanciful probabilities were allowed to displace a finding of beyond
reasonable doubt.

In approaching this issue, the Ugandan court applies the standard beyond reasonable
doubt. They suggest that the standard suggest a high degree of proof which is expected
and that it would be discharged the moment the court is satisfied that the evidence
adduced is inconsistence with the innocence of the accused. However, in all cases where
the accused has a burden to prove, it’s on standard of balance of probabilities as
enshrined in section 104 of the Act.

In some cases, the standard required in civil may be slightly beyond balance of
probabilities but not beyond reasonable doubt e.g. fraud, matrimonial causes.

COMPETENCE AND COMPELLABILITY

Competence refers to the capacity to give evidence. Under section 117 of the Act, all
persons shall be competent to testify unless the court considers that they are prevented
from understanding the questions put to them, or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body or mind, or any
other cause of the same kind.

Under the explanation, a lunatic is not incompetent to testify, unless he or she is

prevented by his or her lunacy from understanding the questions put to him or her and
giving rational answers to them.

Compellability refers to whether a particular witness can be subjected to compulsion

processes of the court to induce that person to testify in court. Can the witness be
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summoned to testify and if he refuses, can he be arrested and imprisoned for contempt of
court.

The general is contained in section 131 of the Act which provides that a witness shall not
be excused from answering any question as to any matter relevant to the matter in issue
in any suit or in any civil or criminal proceeding, upon the ground that the answer to the
question will incriminate, or may tend directly or indirectly to incriminate, the witness,
or that it will expose, or tend directly or indirectly to expose, the witness to a penalty or
forfeiture of any kind, or that it may establish or tend to establish that he or she owes a
debt or is otherwise subject to a civil suit; but no such answer, which a witness shall be
compelled to give, shall subject him or her to any arrest or prosecution, or be proved
against him or her in any subsequent criminal proceeding, except a prosecution for
giving false evidence by that answer.

Under Explanation, a person who is charged with an offence who applies to be called as
a witness shall not be excused from answering any question that may tend to incriminate
him or her as to the offence charged.

Specific attributes of witness who are competent and compellable

Dumb witness

Its provided for under section 118 of the Act which provides that a witness who is unable
to speak may give his or her evidence in any other manner in which he or she can make it
intelligible, as by writing or by signs; but the writing must be written and the signs made
in open court. Evidence so given shall be deemed to be oral evidence. In Hamis s/o
Salim v R confirms that a witness who cannot speak or hear is a competent witness.
However, signs and writing must be done in open court and interpretation must be done
by expert.

Accused person

Under section 117 of the Act, all persons shall be competent to testify. Therefore, an
accused person is a competent witness for the defense but he is not compellable to give
evidence. If he gives evidence on oath, prosecution has a right to cross-examine him and
ounce he takes oath, he undertakes to tell the truth.

Insane person

Section 117 of the Act provides that all persons shall be competent to testify unless the
court considers that they are prevented from understanding the questions put to them, or
from giving rational answers to those questions, by tender years, extreme old age,
disease, whether of body or mind, or any other cause of the same kind.

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Under Explanation, a lunatic is not incompetent to testify, unless he or she is prevented
by his or her lunacy from understanding the questions put to him or her and giving
rational answers to them.

Accomplice

Under section 132 of the Act, an accomplice shall be a competent witness against an
accused person; and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. The evidence ought to be corroborated on
the grounds that an accomplice has an interest in the case and that he may want to shift
the blame on the accused.

Spouses

Under section 120 of the Act, the wife or husband of the accused person shall be a
competent (but not compellable) witness for the prosecution without the consent of the
accused person.

It also provided that the wife or husband of the accused person shall be a competent and
compellable witness for the defence whether the accused person is charged alone or
jointly with another person.

Under section 120 (2) of the Act, “husband” and “wife” mean respectively the husband
and wife of a subsisting marriage recognised as such under any written or customary law.

Children of tender years

Section 117 of the Act states that a child of tender years may not be a competent witness
where it is prevented from understanding the questions put to them, or from giving
rational answers to those questions. The phrase a child of tender years refers to that child
of the average age of 14 years. However, determination of the child of tender years
depends on the court and the age of 14 years is discretionary and simply provides for the
guideline.

The court is expected to conduct a voire dire or a trial within a trial in order to determine
if the child understands the nature of an oath and whether the child has sufficient
capacity or intelligence to give reliable evidence. i.e. does the child know the duty of
telling the truth. See Turyamwijuka V Uganda Criminal Appeal No. 65 Of 2008
where court noted that as a general rule, whenever a child appears to be around the age of
14 years or below, the Court should alert itself to the possibility that the child might not
be of sufficient intelligence or be able to understand the nature of the oath, and should
accordingly carry out a voire dire.

Compellability and Privileges

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 Public police and privileges deals with a situation where evidence may be relevant and a
witness is competent but not compellable to testify on grounds that he enjoys certain
immunity. There are three main types of privileges;

 Private privilege

 Professional privilege

 Public privilege

Private privilege refers to privileges against compellability enjoyed by private individuals as

a result of personal status. E.g. the privilege enjoyed by spouse under section 120.

Professional privilege refers to those not compelled to reveal communication in those

professionals and their clients. e,g. doctors etc.

Under section 125 no advocate shall at any time be permitted, unless with his or her client’s
express consent, to disclose any communication made to him or her in the course and for the
purpose of his or her employment as an advocate by or on behalf of his or her client, or to
state the contents or condition of any document with which he or she has become acquainted
in the course and for the purpose of his or her professional employment, or to disclose any
advice given by him or her to his or her client in the course and for the purpose of that
employment; but nothing in this section shall protect from disclosure;

 Any such communication made in furtherance of any illegal purpose;

 Any fact observed by any advocate in the course of his or her employment as such,
showing that any crime or fraud has been committed since the commencement of his
or her employment.

It is immaterial whether the attention of the advocate was or was not directed to that fact by
or on behalf of his or her client.

Under Explanation, the obligation stated in this section continues after the employment has
ceased. According to section 125, the obligation applies to interpreters, and the clerks or
servants of advocates.

Professional privilege extends to judicial officer under section 119 where no judge or
magistrate shall, except upon the special order of some court to which he or she is
subordinate, be compelled to answer any questions as to his or her own conduct in court as
such judge or magistrate, or as to anything which came to his or her knowledge in court as
such judge or magistrate; but he or she may be examined as to other matters which occurred
in his or her presence while he or she was so acting.

Public Privilege is intended to protect government secrets from disclosure during

proceedings. A number of government documents as well as official communications

85
between government officials are privileged. These are provided for under sections 122 and
123 of the Act.

Under section 122 of the Act, no one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of State, except with the permission of the
officer at the head of the department concerned, who shall give or withhold that permission as
he or she thinks fit.

In addition section 123 provides that no public officer shall be compelled to disclose
communications made to him or her in the course of his or her duty, when he or she considers
that the public interest would suffer by the disclosure.

The question is whether or not the court of law can compel the public official to explain why
he thinks that the evidence in a document is confidential. In Duncan v Cammell, Laird and
Company Limited (Discovery) [1942] AC 624 relatives of deceased seamen claimed
damages against the defendants after their husbands were lost at sea in a submarine built by
the defendants. The Ministry of Defence instructed the defendants not to disclose any details
of the boat’s construction, on the ground that it would be contrary to the public interest to
produce them.

Held: The Minister’s declaration that national security required non-disclosure was sufficient
and binding on the courts. If the Crown made a claim to Crown privilege in proper form, the
Courts were precluded from investigating further: ‘This question is of high constitutional
importance, for it involves a claim by the Executive to restrict the material which might
otherwise be available for the tribunal which is trying the case.’

Viscount Simon LC said:

“Documents otherwise relevant and liable to production must not be produced if the
public interest requires that they should be withheld’ and ‘In a word, it is not enough
that the minister of the department does not want to have the documents produced.
The minister, in deciding whether it is his duty to object, should bear these
considerations in mind, for he ought not to take the responsibility of withholding
production except in cases where the public interest would otherwise be damnified,
for example, where disclosure would be injurious to national defence, or to good
diplomatic relations, or where the practice of keeping a class of documents secret is
necessary for the proper functioning of the public service. When these conditions are
satisfied and the minister feels it is his duty to deny access to material which would
otherwise be available, there is no question but that the public interest must be
preferred to any private consideration”

In Conway v Rimmer HL ([1968] AC 910 the plaintiff was a former probation police
officer constable. He sued the defendant for malicious prosecution and false imprisonment
and applied for discovery of certain documents in the possession of the defendant who was
by then claimed privilege. Court held that the documents be produced for court’s inspection

86
and that if the court found the disclosure would not be prejudicial to public interest or that
any possibility of such prejudice was insufficient to justify its being withheld then the
disclosure should be ordered.

Court further noted that it would give great weight to preserving the confidentiality of tax
documents in the hands of the Revenue and that no harm should be done to the state by
disclosure against public interest in the administration of justice by ensuring that evidence is
adduced.

In Uganda section 124 falls within public and professional privilege where no magistrate or
police officer shall be compelled to say from where he or she got any information as to the
commission of any offence, and no revenue officer shall be compelled to say from where he
or she got any information as to the commission of any offence against the public revenues.

Under the Explanation, “Revenue officer” in this section means any officer employed in or
about the business of any branch of the public revenue.

Under section 128 of the Act, no one shall be compelled to disclose to the court any
confidential communication which has taken place between him or her and his or her legal
professional adviser, unless he or she offers himself or herself as a witness, in which case he
or she may be compelled to disclose any such communications as may appear to the court
necessary to be known in order to explain any evidence which he or she has given, but no
other.

JUDICIAL NOTICE

Judicial notice is a rule in the law of evidence that allows a fact to be introduced into
evidence if the truth of that fact is so notorious or well known, or so authoritatively attested,
that it cannot reasonably be doubted. Facts and materials admitted under judicial notice are
accepted without being formally introduced by a witness or other rule of evidence, and they
are even admitted if one party wishes to lead evidence to the contrary.

This is the process by which courts take cognizance or notice of matters which are so
notorious or clearly established that formal evidence of their existence is unnecessary, as well
as matters of common knowledge and everyday life. The common law doctrine is that
whenever a fact is so generally known, that every ordinary person may be reasonably
presumed to be aware of it, the court notices it. According to Justice Isaacs in this case.

Things court may take judicial notice of should be either a public or universal nature which
are so well known that it would be wastage of court’s time to require further proof of them.

Judicial notice is provided for under section 55 of the Evidence Act, which provides that no
fact of which the court will take judicial notice need be proved.

Categories of facts which are judiciary noticed

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Section 56 (1) of the Act provides that court shall take judicial notice of the following facts;

 All Acts and Ordinances enacted or hereafter to be enacted, and all Acts of Parliament
of the United Kingdom now or heretofore in force in Uganda;

 All Orders in Council, laws, statutory instruments or subsidiary legislation now or

heretofore in force, or hereafter to be in force, in any part of Uganda;

 The course of proceeding of Parliament, and of the councils or other authorities for
the purpose of making laws and regulations established under any law for the time
being relating thereto;

 The accession and the sign manual of the Head of the Commonwealth;

 The seals of all the courts of Uganda duly established; all seals of which the English
courts take judicial notice; the seals of courts of admiralty and maritime jurisdiction
and of notaries public, and

 All seals which any person is authorised to use by any Act of Parliament or other
written law;

 The accession to office, names, titles, functions and signatures of the persons filling
for the time being any public office in any part of Uganda, if the fact of their
appointment to that office is notified in the Gazette;

 The existence, title and national flag of every State or Sovereign recognised by the
Government;

 The divisions of time, the geographical divisions of the world, and public festivals,
fasts and holidays notified in the Gazette;

 The territories of the Commonwealth;

 The commencement, continuance and termination of hostilities between the

Government and any other State or body of persons;

 The names of the members and officers of the court, and of their deputies and
subordinate officers and assistants, and also of all officers acting in execution of its
process, and of all advocates and other persons authorised by law to appear or act
before it;

 The rule of the road on land or at sea.

It should be noted as follows;

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  under section 56 (2) of the Act, that in all these cases and also on matters of public
history, literature, science or art, the court may resort for its aid to appropriate books
or documents of reference.

 Section 56 (3) states that if the court is called upon by any person to take judicial
notice of any fact, it may refuse to do so until that person produces any such book or
document as it may consider necessary to enable it to do so.

 Section 57 of the Act states that no fact need be proved in any proceeding which the
parties to the proceeding or their agents agree to admit at the hearing, or which, before
the hearing, they agree to admit by any writing under their hands, or which by any
rule of pleading in force at the time they are deemed to have admitted by their
pleadings; except that the court may, in its discretion, require the facts admitted to be
proved otherwise than by such admissions.

Estoppel

Estoppel is a rule of evidence which precludes someone from denying the truth of a fact
which has been determined in an official proceeding or by an authoritative body. An estopple
arises when someone has done some act which the policy of the law will not permit him or
her to deny. In certain situations, the law refuses to allow a person to deny facts when
another person has relied on and acted in accordance with the facts on the basis of the first
person's behavior.

Under section 114 of the Evidence Act, when one person has, by his or her declaration, act or
omission, intentionally caused or permitted another person to believe a thing to be true and to
act upon that belief, neither he or she nor his or her representative shall be allowed, in any
suit or proceeding between himself or herself and that person or his or her representative, to
deny the truth of that thing. In civil suit No. 742 of 2004 Obed Tashobya v DFCU Bank
Limited it was noted that the rule of estopple requires;

(i) The making of a representation to the party to the proceedings.

(ii) That the party relies on the representation to his detriment.

(iii) That the party is himself not at fault.

Under section 115 of the Act, no tenant of immovable property, or person claiming through
that tenant, shall, during the continuance of the tenancy, be permitted to deny that the
landlord of that tenant had, at the beginning of the tenancy, a title to that immovable property;
and no person who came upon any immovable property by the licence of the person in
possession of that property shall during the continuance of the licence be permitted to deny
that that person had a title to such possession at the time when the licence was given.

Section 116 of the Act also provides that no acceptor of a bill of exchange shall be permitted
to deny that the drawer had authority to draw the bill or to endorse it; nor shall any bailee or

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licensee be permitted to deny that his or her bailor or licensor had, at the time when the
bailment or licence commenced, authority to make the bailment or grant the licence.

Under Explanation 1, the acceptor of a bill of exchange may deny that the bill was really
drawn by the person by whom it purports to have been drawn.

Under Explanation 2, if a bailee delivers the goods bailed to a person other than the bailor, he
or she may prove that that person had a right to them as against the bailor.

Examination of witnesses

Section 134 of the Act requires that the order in which witnesses are produced and examined
is regulated by the law and practice for the time being relating to civil and criminal procedure
respectively, and, in the absence of any such law, by the discretion of the court.

Under section 136 of the Act, the examination of a witness by the party who calls him or her
is called his or her examination-in-chief and the examination of a witness by the adverse
party is called his or her cross-examination.

The same section provides that the examination of a witness, subsequent to the
crossexamination, by the party who called him or her, shall be called his or her
reexamination.

Order of examinations under section 137 of the Act.

 Witnesses are first examined-in-chief, then (if the adverse party so desires) cross-
examined, then (if the party calling them so desires) reexamined.

 The examination and cross-examination must relate to relevant facts, but the cross-
examination need not be confined to the facts to which the witness testified on his or
her examination-in-chief.

 The reexamination is directed to the explanation of matters referred to in cross-

examination; and, if the new matter is, by permission of the court, introduced in
reexamination, the adverse party may further crossexamine upon that matter.

Section 138 of the Act requires that a person summoned to produce a document does not
become a witness by the mere fact that he or she produces it, and cannot be cross-examined
unless he or she is called as a witness.

Section 140 of the Act defines a leading question to mean any question suggesting the answer
which the person putting it wishes or expects to receive is called a leading question.

When leading questions must not be asked.

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  If objected to by the adverse party or asked during an examination-in-chief, or in a
reexamination, except with the permission of the court. Note that the court only
permits leading questions as to matters which are introductory or undisputed, or
which have, in its opinion, been already sufficiently proved.

Under section 142 of the Act, the leading questions may be asked during cross-examination.

Section 143 requires that Any witness may be asked, while under examination, whether any
contract, grant or other disposition of property, as to which he or she is giving evidence, was
not contained in a document; and if he or she says that it was, or if he or she is about to make
any statement as to the contents of any document, which, in the opinion of the court, ought to
be produced, the adverse party may object to that evidence being given until the document is
produced, or until facts have been proved which entitle the party who called the witness to
give secondary evidence of it.

Under the Explanation, a witness may give oral evidence of statements made by other
persons about the contents of documents if the statements are in themselves relevant facts.

Section 144 of the Act provides for cross-examination of a witness as to his or her previous
statements in writing where a witness may be cross-examined as to previous statements made
by him or her in writing or reduced into writing, and relevant to matters in question, without
the writing being shown to him or her, or being proved; but if it is intended to contradict the
witness by the writing, his or her attention must, before the writing can be proved, be called
to those parts of it which are to be used for the purpose of contradicting him or her.

Questions lawful in cross-examination under section 145 of the Act

 Which tend to test his or her veracity;

 To discover who he or she is and what is his or her position in life;

 To shake his or her credit, by injuring his or her character, although the answer to
those questions might tend directly or indirectly to incriminate him or her, or might
expose or tend directly or indirectly to expose him or her to a penalty or forfeiture.

Impeaching credit of witness under section 154 of the Act

The credit of a witness may be impeached in the following ways by the adverse party, or with
the consent of the court, by the party who calls him or her;

 By the evidence of persons who testify that they, from their knowledge of the witness,
believe him or her to be unworthy of credit;

 By proof that the witness has been bribed, or has accepted the offer of a bribe, or has
received any other corrupt inducement to give his or her evidence;

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  By proof of former statements inconsistent with any part of his or her evidence which
is liable to be contradicted;

 When a man is prosecuted for rape or an attempt to ravish, by evidence that the
prosecutrix was of generally immoral character.

Under the Explanation, where a witness declaring another witness to be unworthy of credit
may not, upon his or her examination-in-chief, give reasons for his or her belief, but he or she
may be asked his or her reasons in cross-examination, and the answers which he or she gives
cannot be contradicted, though, if they are false, he or she may afterwards be charged with
giving false evidence.

Read the rest of the sections and other materials on the topic

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