RECAP:

Defining evidence

Body of rules governing means by which facts are proved in court

Facts requiring proof: (a) fact in issue (b) relevant fact (c) collateral issue

Forms of evidence

Labels depending on content, rules relating to that particular type of evidence and purpose for
adducing the document.

Direct evidence, circumstantial evidence, real evidence and hearsay evidence

DOCUMENTARY EVIDENCE

Objectives:

1. Introduction
2. Defining documentary evidence (a) document (b) purpose for production
3. Rules relating to documentary evidence (a) primary evidence and exceptions (b) proof of
due execution
4. Production of documentary evidence: evidence act cap 43

Introduction:

Documentary evidence may constitute compelling and conclusive evidence; this is especially so
because a document is often self explanatory in which case the fear of discrediting the evidence
through cross examination will not be present. Having stated that when dealing with documentary
evidence there is a fear of fabrication only because with modern technology it is easy to forge a
document or simply to create secondary evidence of the document which is not an accurate
reflection of the original version. Due to this documentary evidence is subject to strict rules of
production being:

1. The primary evidence rule

2. Proof of due execution

DEFINING DOCUMENTARY EVIDENCE

Documentary evidence is evidence in the form of a document, where the party producing the
document seeks to rely on its contents.

Defining document

Common law definition

R v Daye, in this case Darling J defined a document as ‘any written thing capable of being evidence is
properly described as a document and it is immaterial on what the writing may be inscribed. It might
be inscribed on paper as is the common case now; but the common case once was that it was not on
paper but on parchment and long before that it was on stone, marble, on clay and it might be and
often was on metal.’

What does the above definition illustrate?

Statutory definition of a document:

The evidence act cap 43 of the laws of Zambia defines a document as including:

‘any device by means of which information is recorded or stored, and books, maps, plans and
drawings. ‘

Compare and contrast the common law definition and the statutory definition of a document

Second part of the definition

‘where the party producing the document seeks to rely on its contents’

This part of the definition is fundamental as it helps us distinguish between real and documentary
evidence. It is important to distinguish between the two because real evidence will not be subject to
the harsh rules of production that documentary evidence is subject to.

The distinction will lie in the purpose for producing the document. Where the purpose is to rely on
the contents of the document it will be classified as documentary evidence and will thus be subject
to the rules governing documentary evidence.

Where will the following fall:

 A deed is produced to illustrate that a contract was entered into on a certain date

 A deed is produced to illustrate that the defendant stole it and his finger prints are on the
document.

 A letter written by the accused stating that he is going to kill Mr X (the deceased) is produced
in court

 A letter written by the accused has blood stains on it that matches the DNA of Mr X (the
deceased)
  Document is stolen, found in possession of accused, produced in court to show that he had
stolen the document

Rules governing production of documentary evidence:

1. The primary or best evidence rule:

This rule entails that where a party seeks to rely on the contents of a document they must
produce it in its best form i.e. original form:

Cases:
Shamwana and 7 others v the people (1985)
MacDonnel v Evans,
compare and contrast Augustien v Challis and R v Holy trinity hull

Categories of primary/ best evidence:

(a) The original version of the document

(b) A court sealed copy of the document where the original is required to be filed in court e.g. a
will
(c) Any document executed outside Zambia is deemed to be sufficiently authenticated for the
purposes of use in the country if the procedure in the Authentication of Documents Act is
followed

Exceptions to the primary evidence Rule: GEORGE BIENGA v THE PEOPLE (1978) Z.R. 32 (H.C.)

(a) Public documents: see order V of the high court act, the court takes judicial notice of these
(b) A formal admission made by the opponent to the contents of a copy
(c) Where the original is lost and the party took all necessary steps to locate the document
(d) Where the document is in the possession of a stranger that claims a privilege to it, secondary
evidence may be produced
(e) Where the document is in the possession of the opposing party who after filing notice to
produce refuses to produce the document
(f) Where the document for all intents and purposes cannot be brought to court e.g. an
inscription on a wall or one that cannot leave the custody of a building
(g) Where there are statutory exceptions: bankers books under the Evidence Bankers books act
cap 17 of the laws of Zambia (b) Books of accounts Order IV of High Court Act

2. Proof of due execution

The first thing to note is that a document can be classified as either a private document or a public
document. A private document is basically one that is not a private document see Knox on evidence.
The court takes judicial notice of public documents.

In the case of Mercer v Denne, the court analysed Lord Blackburn’s conception of what a public
document is and the following are the characteristics:

1. it must be open to the public

2. Must be made for the purpose of the public making use of it and being able to refer to it.

3. It is meant to be where there is a judicial or quasi judicial duty to inquire

4. The very object must be that it should be made for the purpose of being kept public, so that
the persons concerned in it may have access to it afterwards.

Where the document is private there is need for proof of due execution of the document to show
that the author is that alleged by the party relying on the document or in some cases to show that
the document satisfies all the requisite formalities for a document of that nature e.g. a will must
comply with s6 of the Wills act cap 60 to be valid.

Ways of proving due execution:

1. Proof of handwriting: (a) testimonial: testimony of author or person that saw author sign or
attest (b) opinion: person that knows handwriting of author although not having seen author
sign the particular document in question (c) comparison: author’s handwriting is compared
with document in question s8 Criminal procedure act 1865
2. Proof of attestation: (a) of a will: there must be evidence by either one of the witnesses
attesting to the signature of the testator to show that the document was duly executed, if
none are available then there may be secondary evidence of the handwriting of the
witnesses attesting, if this is unavailable then there may be evidence of third parties present
at time of execution. (b) of other documents: this may be done by any of the three methods

3. Presumptions relating to documents: where a document is 20 years old and shown to have
been in proper custody (natural and reasonable custody) it is presumed to have been duly
executed, see Evidence act cap 43 s7

Production of documents in court see s3 and 4 of the Evidence act

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

Practice and procedure:

Civil cases:
 1. Pleadings
2. Orders for direction
3. List of documents
4. Discovery and inspection
5. Bundle of documents
6. Supplementary bundle

Criminal cases

1. Background is set
2. Identification
3. Proof of due execution
4. Production of document

Extrinsic evidence of the terms of a document

Another important aspect to note on documentary evidence is that a document is both exclusive
and conclusive as evidence of its terms as a general rule. Extrinsic evidence is any evidence outside
the document itself and includes all other documentary evidence as well as oral evidence, thus
extrinsic evidence is generally inadmissible to:

 Prove the contents of a document

 To add to, vary or contradict the terms of a document and

 To prove the meaning intended by the author of the document.

Exceptions:

However extrinsic evidence as an exception to the general rule may be admissible to:

 To show that a particular document or rather in terms of contract, contract is void for
illegality, mistake or to show the nature of the consideration, or to show misrepresentation
or that the document is voidable and to show the real nature of a transaction, capacity of
signatories, collateral undertaking and usage and secondly

 A party can have a document translated although as a general rule extrinsic evidence is not
admissible to show what the words used in a document were intended to mean

 Evidence is also admissible to resolve uncertainty as to the meaning of a document