ALEGA BENSON ORINGA

REG NO;20/U/0762/GBL/PS
LAW OF EVIDENCE
The general meaning of the term “evidence” is “the available body of facts or information
indicating whether a belief or proposition is true or valid”. But, as per the interpretation
of Section 2d of the Evidence Act Cap 6 , evidence means and includes:
 All statements which the court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements are called oral evidence;
 All document [including electronics record] produced for the inspection of the court;

Three separate eras must be studied in order to trace the history of the law of evidence in our nati
on: the ancient Hindu, Muslim, and British periods.

The goal of any path, according to Hindu dharmashastras, is to discover the truth. 
the idea that a judge should use his ability to extract deception, much like a doctor would use sur
gical tools to remove an iron dart from a patient's body.
Vasista recognized three categories of proof: Bukhthi, witnesses, and Lekhya (documented proof
) (possession).

Regarding the discussion of the law of evidence in Sir Abdul Rahim's book "Muslim Jurispruden
ce," The Mohammendan law providers divide evidence into oral and documentary categories. 
As of today, oral testimony is further divided into direct and hearsay evidence.

By virtue of a royal charter established in Bombay, Madras, and Calcutta, the presidential courts 
in British India were governed by English norms of evidence law. There were no set standards g
overning the law of evidence in mofussil courts, which were located outside the presidential citie
s. 
The admission of evidence was a matter of complete discretion for the courts. Because there wer
e no clear guidelines for the law of evidence in the mofussil courts, the entire administration of ju
stice was in complete disarray.

There was a dire necessity for the codification of the rules of law. In 1835 the first attempt was
made to codify the rules of evidence by passing the Act, 1835. Between 1835 and 1853 about
eleven enactments were passed dealing with the law of evidence. But all these enactments were
found inadequate.

In the year 1868, a commission was set up under the chairmanship of Sir Henry Mayne. He
submitted the draft, which was later found unsuitable to Indian conditions. Later in the year
1870, this task of codification of the rules of law of evidence was entrusted to Sir James Fitz
James Stephen. Stephen submitted his draft and it was referred to the select committee and also
to High Courts and members of Bar to elicit the opinion, and, after gathering opinion, the draft
was placed before the legislature and it was enacted. And at last, “The evidence Act ” came in to
force on 1st September, 1872.

Prior to Independence, there were as many as 600 princely States in India, which were not within
the jurisdiction of the British system of justice. Each of these states had its own rules of law of
evidence. But by and large, followed the Indian evidence Act 1872. After independence, there
was a merger of princely states into the Indian Union. Both the substantive as well procedural
laws have since been made uniformly applicable to all states, whether British province or native
States. So much so, the law of evidence is now applicable to all states constituting the Union of
India.

Uganda’s law of evidence is basically statutory and most of it is found in the Evidence Act Cap 6
of the Laws of Uganda. The bulk of it was derived from Indian Evidence Act of (1782) which
was an attempt to codify the English Common Law. Although our law of evidence is modeled on
the English common law, we have some slight differences between the English common law and
the Indian Evidence Act of 1872

Section 2d of the Evidence Act Cap 6, defines as, “evidence” means and includes:

 All statements which the court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements are called oral evidence;
 All documents [vii][including electronics record] produced for the inspection of the
court; such documents are called documentary evidence.
It means this section deals with the term “Evidence” which is derived from the latin expression
“Evidens Evidera” which signifies the state of being evident, that is, plain, apparent or
notorious.

According to Benthem, the evidence is defined as any matter of fact, the effect, tendency or
design of which is to produced in the mind, a persuasion affirmative or disaffirmative, of the
existence of some other matter of fact.

According to Stephen, the word ‘evidence’ as generally employed, is ambiguous:-

It sometimes means the words uttered in and things exhibited by witnesses before the court of
justice;At other times it means the facts proved to exist by those words or things and regarded as
the ground work of inference as to other facts in issue not so proved;
It is sometimes used as meaning to assert that a particular fact is relevant to the matter in the
inquiry.

According to Taylor, evidence means and includes all facts except arguments, which tend to
prove or disprove any matter, which under inquiry in judicial proceedings

Evidence is generally divided into three categories:

 oral or personal or primary,

 documentary or secondary,
 material or real.

Oral evidence may be classified into two categories:

 Direct, and
 Indirect or hearsay.

Primary oral evidence is the evidence of what a witness has personally seen or heard or gathered
by his senses. It is called direct evidence as opposed to hearsay (Section 59). The Uganda
Evidence Act, Cap. 6 stipulates that when given in cases, oral evidence given must be direct, that
is "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." Section 59 (a) 1of the Act. By that provision of the law, oral hearsay evidence is
rendered inadmissible, subject, however, to the provisions of Section 302 of the Evidence Act,
Cap. 6 which provides for instances (not applicable to the present case) when hearsay evidence
may be admissible

In R v. Sharp 3Lord Havers said (at p. 11): `I accept the definition of the hearsay rule in Cross on
Evidence, 6th ed. (1985), p. 38: ``an assertion other than one made by a person while giving oral
evidence in the proceedings is inadmissible as evidence of any fact asserted.''A statement made
on oath in earlier proceedings is hearsay for the purposes of any subsequent proceedings if it is
tendered to prove the truth of the matters stated R v. Lockley4). The exclusionary hearsay rule
referred to in R v. Sharp [1988] 1 WLR 7 (HL) no longer applies in civil proceedings

For the definition of hearsay evidence, we shall adopt the following definition of hearsay
evidence as recommended upon review of common law authorities by the Ireland Law Reform
Commission in its Consultation Paper 5

"Hearsay evidence refers to any statement, whether a verbal statement, written document or
conduct, which is made, generated or which occurred out of court involving a person who is not
produced in court as a witness, and where the statement is presented as testimony to prove the
truth of the facts which they assert."

In R v. Khelawon6, the Supreme Court of Canada (per Charron, J.) held that the essential
defining features of hearsay are the following: 1) the fact that the statement (which is made out
of Court) is adduced to prove the truth of its contents and 2) the absence of a contemporaneous
opportunity to cross-examine the declarant.As a rule, hearsay evidence is not admissible, but
there are some exceptional cases of hearsay evidence which are admissible. Such exceptional
cases of hearsay evidence are examples of secondary oral evidence or indirect evidence (e.g.,
Sections 32, 33).

1
Evidence Act, Cap. 6
2
Evidence Act, Cap. 6
3
[1988] 1 WLR 7 (HL)
4
[1995] 2 Cr App R 554 (CA)
5
titled "Hearsay in Civil and Criminal cases" (LRC CP 60-2010):
6
[2006] 2 R.C.S. 787
Primary documentary evidence is the evidence of the original documents (Section 62), while
secondary documentary evidence is the evidence of copies, etc., of documents which are
admissible under certain circumstances. (Sections 63, 65).

The Best evidence or the original evidence means the primary evidence. The Best evidence Rule
excludes secondary evidence.

The word direct evidence is used in two senses:

 As opposed to hearsay evidence,

 As opposed to circumstantial evidence.

In the first sense, direct evidence is the evidence of a fact actually perceived by a witness with
his own senses or an opinion held by him, while hearsay evidence is, e.g., what someone else had
told the witness to have seen or heard by him. In section 60 the word ‘direct’ is used in
contradistinction with ‘hearsay’ evidence.

Direct evidence is that which goes expressly to the very point in question and which, if believed,
proves the point in question without aid from inference or reasoning, e.g., the testimony of an
eye-witness to murder. Indirect or circumstantial evidence, on the other hand, does not prove the
point in question directly, but establishes it only by inference.

In Section 59 the term “direct evidence” is used as opposed to “hearsay” evidence and not as
opposed to “circumstantial” evidence, and therefore, in the sense in which this term is used in
that section, circumstantial evidence must always be “direct”, i.e., the facts from which the
existence of the fact in issue is to be inferred must be proved by “direct” ‘and not by “hearsay”
evidence.

Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The

circumstances may lead to particular inferences and the relationship to true facts may be more
apparent than real. The value of circumstantial evidence has to be assessed on the consideration
that it must be such as not to admit of more than one solution, and that it must be inconsistent
with every proposition or explanation that is not true. If these conditions are fulfilled,
circumstantial evidence may approximate to truth and be preferred to direct evidence.
It was held in Simon Musoke vs. R 7that: in a case depending exclusively or partially upon
circumstantial evidence, the Court must before deciding upon a conviction find that, the
inculpatory facts are incompatible with the innocence of the accused and incapable of
explanation upon any reasonable hypothesis than that of guilt.”

Furthermore, in Teper vs. R 8the court held:"It is necessary before drawing the inference of the
accused's guilt from the circumstantial evidence to be sure that there are no other co-existing
circumstances which would weaken or destroy the inference."

Taylor on Evidence (11th Edn.) at page 74 stated that "the circumstances must be such as to
produce moral certainty to the exclusion of every reasonable doubt." An individual item of
circumstantial evidence taken by itself may or may not be particularly probative of the accused's
guilt in criminal proceedings. Much depends on the nature of the evidence in question. Some
types of circumstantial evidence are inherently cogent, whereas other types may have very little
probative value. If the only evidence identifying the accused as the offender is a single item of
circumstantial evidence then that evidence must of course be sufficiently probative to discount
the possibility that any other person could have committed the offence, for example a sufficiently
complete fingerprint

The problem with circumstantial evidence is that its reliability may be unchallengeable. In Teper
v. R9 Lord Normand said (at p. 489): `Circumstantial evidence may sometimes be conclusive,
but it must always be narrowly examined, if only because evidence of this kind may be
fabricated to cast suspicion on another . . . It is also necessary before drawing the inference of
the accused's guilt from circumstantial evidence to be sure that there are no other co-existing
circumstances which would weaken or destroy the inference.'

Finally,The law of evidence is an intriguing fusion of realworld and theoretical concerns.It is use
ful since it is the law that is used daily in courts to decide, among other things, whether evidence 
should be accepted, the useful of  
which, if acknowledged, may be used as evidence, and the manner  who is allowed to interrogate 
the witnesses. It consists of a corpus of legislation that requires  Any advocate's full knowledge a

7
[1958] EA 715
8
(2) AC 480
9
[1952] AC 480 (PC)
nd comprehension (especially those  who represent clients in criminal court) as they may need to 
make  filings at extremely short notice about a matter of evidence or associated priceless But this
does not mean the law of evidence is no more than a body of rules to be learnt by rote. Far from
it. The law of evidence is a discipline which ought to be studied at an academic level and this is
as true for the prospective advocate as it is for any other student of the subject
REFERENCES

The Evidence Act Cap 6

Gooderson, `Is the Prisoner's Character Indivisible?' [1953] CLJ 377

Cross, `The Criminal Evidence Act 1898' (1962) 78 LQR 407

Tapper, `The Meaning of Section 1(f)(i)' in Crime, Proof and Punishment ± Essays in Memory of
Sir Rupert Cross (London, 1981) p. 296

Pattenden, The Purpose of Cross-Examination Under Section 1(f) [1982] Crim LR 707

Dennis, `Evidence Against a Co-Accused' (1983) 36 CLP 177

Munday, `Reflections on the Criminal Evidence Act 1898' [1985] CLJ 62

Munday, `Stepping Beyond the Bounds of Credibility' [1986] Crim LR 511

Seabrooke, `Closing the Credibility Gap' [1987] Crim LR 231 Mirfield, `The Argument from
Consistency for Overruling Selvey' [1991] CLJ 490