THE LAW OF EVIDENCE

LECTURE SERIES
Lecture 1
(17/11/2015)
Dr. Deo John Nangela
©2015
“Law cannot be properly understood without
some knowledge of the context
in which it operates.”
 LECTURE 1
HISTORICAL BACKGROUND TO EVIDENCE LAW
Development of Evidence Law in England
- Adducing evidence is largely acknowledged
as a rational means of connecting facts to and
or proving or disproving them in a dispute.
- This was not the case in the past since, in
England, as in many other parts of he world,
e.g. many irrational means were used as way
of proving the alleged matters of fact.
- Such means were numerous. We can give some
examples as follows:
• Trial by battle : Contestants fought out in a
battle with a hope that God would interfere
on the part of the innocent. Thus, the one who
lost the battle was proved to be guilty.
• Trial by ordeal :
(i) Touching a corpse: A suspect was told
to touch a dead body, which it was
believed it would react in certain way-
winking, pointing a finger, or oozing blood.
If he refused then he was guilty.
(ii)Retrieving a stone: The accused was to
retrieve a stone, or ring from a pot
of boiling water. If his arm emerged
unscathed (unharmed) he was delivered
to have been protected by God and
thus innocent.
(iii)Walking while carrying a heated iron:
The accused walked nine paces while
carrying a piece of heated iron. If he
emerged to avoid burns he was innocent.
• NOTE: These crude methods of proving or
disproving alleged matters of fact were
discarded with passage of time and others,
like trial by battle, were abolished by a
statute. In England, trial by battle was
abrogated by a statute only in 1817. New
rules thus developed.
• Some of the common law principles of
evidence can be traced to the Middle Ages.
However, the majority of them, including
the rule against hearsay, were developed in
the 17th and 18th centuries.
• One notable feature of common law was
that it consisted, and still consists, of many
exclusionary rules.
• Exclusionary rules: are rules declaring that
certain facts will not be accepted by courts: a
body of defunct rules about competency of
witnesses; the rule against hearsay; evidence
of character; rule excluding evidence of
opinion, etc.
Three factors are said to have contributed to
exclusionary nature of the English law of
evidence:
– the jury,
– the oath, and
– common law adversary system of procedure.

However, the fear that evidence might be

manufactured contributed to the development
of many other rules.
NOTES:
A jury is a sworn body of people convened
to render an impartial verdict (a finding of
fact on a question) officially submitted to
them by a court, or to set a penalty or
judgment.

Jurors are essentially the judges of facts and

not law.
 Development in the Pre-Colonial Evidence
Law in Tanganyika
(i) The pre-colonial societies in Tanzania had
no formal system of courts we know today.
(ii) Disputes were solved by certain clan or
community elders, in a village, etc.
(iii)Normally, every member of a clan or
community had the right to attend any
session of solving disputes and participate
in the proceedings.
(iv)There were various methods of proving
cases in such dispute solving sessions.
• Examples:
– Calling witnesses to give evidence on behalf of a
party or any member present during the trial
could volunteer to give oral evidence on behalf
of a party,
– A party could be compelled to take an oath as
an indication that he is innocent. Failure or
refusal to take an oath was a good proof that he
was guilty.
– Proof by Ordeal: Trial by ordeal entails
determining the guilt or innocence through
some supernatural means or judicium dei
(judgement by God).
• Rex V. Palamba S/O Fundikira, 14 EACA 96(
Tanganyika,1947)
The two appellants were jointly charged in the High
court of Tanganyika at Kigoma. They were found guilty
of the murder of the woman Wamlunda d/o
Kalyungumba and sentenced to death. They appealed to
The East African Court of Appeal.
The 1st Appellant had lost 11 Children. The two
Appellants went to a particular medicine man - a six hour
journey-to get Mwavi.
On return they conducted what may be termed as a trial
by ordeal. He made his two wives, his mother and daughter
to take Mwavi to find out whether they had not killed his
children.
• The trial was organised and directed by the first
Appellant. The four women of the family were
compelled to take this medicine and swallow
large quantities of water – a certain amount of
formality being observed. The first Appellant
presided with a gun and intimated to shoot
anyone who refused to take the medicine. Of
the four women who took Mwavi, two vomited
and survived;
• the other two elder women did not vomit and
they died. Those who died were the first
Appellant’s senior wife, Wamlunda d/o
Kalyungumba, and his mother.
When he was questioned about Mwavi, he said
that Mwavi was a medicine (dawa) used by
witches. If a person takes Mwavi and he has done
wrong, he dies, whereas if a person takes Mwavi
and he or she has done nothing wrong, he or she
does not die but only vomits.
The woman Wamlunda d/o Kulyungumba in
respect of whose death the appellants were
convicted of murder was the senior wife of the
first Appellant (Palamba Fundikira).

There was no evidence of what would

constitute a fatal dose of Mwavi.
  Development of law of evidence in India
• It is worth noting that our law of evidence in Tanzania
is closely interlinked with India. That being said we
need to have some understanding about the
development of law of evidence in India.

• India was a colony of Britain. In 1726, the common law

and English statutes were introduced in India.

• Between 1835 and 1853, eleven attempts to enact a

statute were made with a view to codifying the law of
evidence in India but all were found to be inappropriate
to Indian conditions.
Success were, however, recorded in 1872
when the Indian Evidence Act was passed
and came into force on 1st September 1872.
The 1872 Indian Evidence Act codified the
English law of evidence with some
modifications intended to make it suit to the
local circumstances.
Consequently, the Act has some remarkable
departures from the English common law.
 The differences are that:
(i) Confession made to a police officer was not
admissible. It showed distrust of the Indian
Police Force.
(ii) In England confession of an accused person
was inadmissible as against anyone but
himself, but under the Indian Evidence Act
1872, confession could be admitted against a
co-accused.
(iii)Witnesses, as in England, may decline to
answer questions that tend to incriminate
them. But witnesses in India may be
corroborated by their own previous
statements, if made contemporaneously or
before a competent authority.
(iv)Dying declarations as to the cause of death
are admissible in India both in criminal
cases and civil suits, whether or not the
declarant was in the expectation of death.
(v) There is no provision in the Indian
Evidence Act that entries in the course of
business, to be admissible, as an exception
to the hearsay rule, must be contemporaneous
with the act to which they relate.
(iv) The judge is permitted under Indian law to
ask any question at any time and to insist
on production of any document,
irrespective of the relevancy of the answer
or admissibility of the document, although
the judgment must be based on relevant
facts properly proved.

Some of the above (not all) exceptions applied

(and still apply) even in Tanzania (East
Africa).
  Evidence Law in East Africa
• In Uganda, the Evidence Act was drafted
locally in 1909 and did not apply the Indian
Evidence Act 1872 but it reproduced verbatim the
Indian Evidence Act 1872 except variations of
sections and few other provisions.
• In Zanzibar, the Indian Evidence Act 1872 was
previously applied but subsequently the British
colonial government issued a Decree which
promulgated the Evidence Decree, 1917 which of
course reiterated the Indian Evidence Act,
1872.
In Tanganyika: The Indian Evidence Act
1872 was made applicable to Tanganyika in
December 1920 through the Tanganyika
Indian Acts (Application Ordinance) until 1967
when the Evidence Act was enacted. The Act is
a statute in pari materia with the Indian Act.
NOTE:
(i) that there has been significant changes to
the Act since 1980 to date but most its
provisions are still in pari materia to the
Indian Act.
(ii) The Tanganyika Order in Council 1920, which
was the first Constitution, created the High Court in
its section 17 (1).
Section 17 (2) of that Constitution enumerated
laws that were to be applied by the High Court, to
wit: Civil Procedure, Criminal Procedure and Penal
Codes of India, other applied Indian Acts, Tanganyika
Ordinances, substance of the common law, equity and
statutes of general application .
By virtue of the aforesaid provision, the Indian
Evidence Act 1872 and other Indian pieces of
legislation were made applicable to Tanganyika.

THUS: the Indian Evidence Act 1872 was also

applicable by virtue of section 17(2) of the TOC
1920.
  Evidence Law in Tanganyika
after independence
• Whereas the application of Indian penal and
criminal procedure codes were discontinued in 1930
and replaced by local codes, the Indian
Evidence Act 1872 continued to be applied
during the whole period of British colonialism.
It continued to be applied even after
independence.
• In 1967, Parliament enacted the current
Evidence Act, 1967 [now Cap 6 RE 2002]. The
Act is almost a replica of the Indian Evidence Act
1872 with minor changes.
THUS:
This above history is important in so far as
interpretation and understanding of the
provisions of the Act are concerned.
The courts in Tanzania, and indeed in all East
African countries, have established a tradition
of adopting interpretations put by Indian courts
on similar provisions. Such Indian decisions
though not binding are of great persuasive
value.
Again, for the same reasons there is a
pronounced use of Indian textbooks on the law
of evidence. E.g. Sarkar On Evidence or Monir,
M., (1994), Law of Evidence, 5th edtn, The
University Book Agency, Allahabad.
GENERAL OVERVIEW OF THE LAW
OF EVIDENCE

Lecture 2
24/11/2015
In the previous lecture we alluded to
the fact that; “Law cannot be
properly understood without some
knowledge of the context in which
it operates.”
Indeed, just as the student of
commercial law needs to understand
something of what is involved in
ordinary commercial transactions, so
the student of evidence needs
some understanding of what is
involved in ordinary processes of
proof.
In this topic we will continue and look
at the processes relating to Proof.
Later we will look at a more traditional
topic: the definition of ‘evidence’.
Next, point of discussion contains a
short glossary of some of the technical
terms commonly encountered in
studying evidence.
The fourth we will discuss some key
concepts frequently used in this
subject: relevance, admissibility and
weight. These are fundamental to the
consideration of all aspects of our
subject.
Then, fifth point will discuss some
characteristics of evidence law which
it is helpful to appreciate at the outset:
its limited application and the way in
which it is constructed. We, will
however begin by defining what is
law?
Law - What is law? One commentator is
quoted of saying: ‘obviously law can never
be defined.” (see:M.D.A. Freeman, (2001),
Lloyd’s Introduction to Jurisprudence, 7th
edtn, Sweet & Maxwell, London, p.39.
Austin: “Law is a command of the sovereign.”
(Even so this definition has been criticised).
Cater: Law is “a body of rules for regulation
of human conduct.” (James Carter, (1907),
Law: Its Origin, Growth and Function, G.P.
Putnam’s Sons, New York and London, p.7.)
So : No agreed definition of law.
The entire corpus juris (body of
laws) is broadly categorised into
two:
(i) substantive laws,
(ii) adjective (procedural) laws.
Law of Evidence
The law of evidence is that branch of
the law that regulates production and
admissibility of evidence in judicial
and other proceedings.
Substantive rules: stipulate rights and
duties of individuals .

Procedural rules or adjectival law:

consists of rules that are used to
enforce private or public duties and the
public discipline: writs, process, trials,
judgments, executions, and so forth.
Thus, the Law of Evidence belongs to the
adjective/adjectival or procedural law.
Evidence and Proof
Proof is the establishment of the existence of
some fact to the satisfaction of the tribunal
charged with the duty of trying the matter
under controversy.
-In 1910 one Dr. Crippen was charged with the
murder of his wife.According to the prosecution,
Crippen had fallen in love with his young
secretary, Ethel Le Neve, and had decided to kill
his wife to leave himself free to marry Ethel. One
night, therefore, he put poison in a glass of
stout – his wife’s regular nightcap. The poison
might have been sufficient to kill her, or it might
merely have made her unconscious.
-At any rate, by the time Crippen had
finished with her she must have been dead,
because he drained the blood from the
body, dissected it, and separated the flesh
from the bones. He buried the pieces of
flesh in the cellar of the house where they
lived. The bones and the head were never
found; it was assumed that they had been
burned.
-To explain his wife’s absence, Crippen at
first told her friends that she was staying
with her sister in America; later he said that
she had died there.
-When the police began to make inquiries,
he told them that his wife had left him and
that he had been too embarrassed to tell the
truth to friends and neighbours.
-Crippen had not yet been arrested, and
shortly after his interview with the police he
hurriedly left the country with Ethel Le Neve.
Meanwhile, the police dug up the cellar floor
and discovered the human remains buried
there. Crippen was followed and brought
back to stand trial.
Imagine yourself now in the position of a
lawyer for the prosecution in that case. You
know, of course, what constitutes murder in
law.
(a)Given these facts and that law, what had to
be established before a jury could find
Crippen guilty of murder?
(b)What should be the first thing to prove?
(c)What other facts that needed to be
established given the story?
 The first thing that had to be proved was that Mrs
Crippen was dead.

 Since Crippen had maintained when questioned by

the police and later at trial that his wife had left
him and that he knew nothing of the remains in
the cellar, the other thing to prove is : whether the
remains found in the cellar were those of Mrs
Crippen.

 They also had to show that it was her husband who

had killed her and that he had done so
intentionally.

 This meant they had to prove that Mrs Crippen had

died from poison administered by the accused with
the intention of causing her death
 Lecture 3

OVERVIEW OF THE LAW OF

EVIDENCE…..
Cont’d.

1/12/2015
 Consider the following figure:
1

5 4 3 2

• Number 1 is ‘the thing that has

ultimately to be proved.’ i.e, Dr Crippen
murdered his wife (Wigmore calls it:
“ultimate probandum”).
Number 2- 5 inclusive represent what
Wigmore called “penultimate probanda”.
In other words: These are the propositions
which, taken together, go to prove the
“ultimate probandum”.
They include:
• No.2- that Mrs Crippen was dead.
• No. 3-Poison had caused her death.
• No.4-Dr Crippen had administered the
poison.
• No.5-He had done so with the intention of
causing death.
You must note that: Unless there
was some evidence to support each
one of the penultimate probanda, a
defense submission that there was
no case to answer would have been
likely to succeed.
Proof is made by establishing
several sets of inferences which
ultimately converge on item 2.
 Each set of inferences rests on a
foundation.
 ….
There are three types of foundation on which
sets of inferences can be based:
– the testimony of a witness at trial, e.g.
the testimony of the forensic scientists
(expert)
– an item of ‘real evidence’, ie, something
which the jurors can examine for
themselves. E.g. a piece of flesh collected
with the other pieces from the cellar and
said by the prosecution to bear an
identifying scar.
– a generalisation about the way things are
in the world.
All three types of foundation have in
common the fact that the members of the
jury rely on their own perception for
experience of them. The jurors can see
and hear the witnesses giving oral
evidence in the witness box. They are able
to see the items of real evidence. They
rely on their own previous perceptions,
that is, their experience, when deciding
whether or not to accept the truth of a
proposed generalisation.
• If they recognise it as something that
is either already part of the way in
which they understand the world, or
as something that at least fits with
their understanding, they are likely to
accept it. Otherwise, it is likely to be
rejected.
• Just as a set of inferences is based on
a foundation, so each inference in the
set is based on those immediately
below it.
• This basing relationship is hard to define,
but for these purposes it will be enough to
say that a basing item, often taken in
conjunction with other items of evidence,
makes another item in the chain of proof to
some degree likely. E.g., if you probably
feel instinctively that once it is established
that a piece of the abdomen bore the
mark of an operation scar, and that Mrs
Crippen had an operation scar on her
abdomen, it is likely that the remains came
from the body of Mrs Crippen.
The significance of an item of evidence
lies in the fact that it makes a particular
inference either more or less likely to be
true. E.g. The prosecution needed to
show that the remains found in the cellar
were those of Mrs Crippen. The hope
here is to establish this by proving that
Mrs Crippen had an operation scar on
her abdomen and that an identical scar
was to be found on one of the pieces of
flesh found by the police expert called to
that establish that fact.
• BUT, the defence can counter it as well:
by calling expert evidence to the effect
that the mark on the flesh was not a
scar, but a fold that had developed after
burial. So, Whether the jury accepted the
truth of the inference represented by
that item (piece of flesh with a scar)
would depend on which expert they
found the more persuasive.
• The above analysis is one way of
thinking methodically about the facts of
any case in which you, as a lawyer, may
be instructed.
• As an advocate and a State Attorney, you
must be able to ensure, so far as
possible, that your client has available
all the evidence needed to establish or
rebut a claim.
• You have to be aware of the strength
but also weaknesses in your own case
and in that of your opponent
You may ask:
-Does too much depend on the evidence
of one witness?
-What grounds might there be for
questioning that person’s reliability?
- As it will very rarely be the case that one
particular inference must inevitably be
made from certain facts; what other
possible inferences might be made
which would do your client less
damage or your opponent more harm?
• To what extent are you or your opponent
relying on the truth of hidden and
hitherto unconsidered generalisations
about the way things are in the world as
the basis for making inferences?

SO: Having referred to the term

“Evidence”, what does this term
Mean?
 Defining the term “Evidence”
There have been several attempts:
For instance “Evidence” is regarded as:
‘that which makes evident a fact to a
judicial tribunal’
information by which facts tend to be
proved’
‘any material which tends to persuade
the court of the truth or probability of
some fact asserted before it’;
something which may satisfy an inquirer
of [a] fact’s existence’
In our law, the term evidence has been
defined under section 3 of The Evidence
Act, [Cap 6 RE 2002] as follows;

““evidence" denotes the means by which

an alleged matter of fact, the truth of
which if submitted to investigation, is
proved or disproved; and without
prejudice to the preceding generality,
includes statements and admissions by
accused persons.”
One author defines “Evidence” simply to
mean:
“anything, which is necessary to prove a
particular fact. It could be oral
testimony, i.e., by the words of mouth,
production of document or presentment
of anything like the instrument or
weapon, which is used while committing
a crime, etc. In other words, evidence is
the means of proof.”
 …
• Another D.W. Elliot: “evidence is anything
which tends to persuade of the existence or
non-existence of some fact or situation
which he is inquiring about. It need not in
fact persuade the inquirer; it is enough that
it tends to persuade him. The inquirer may
disbelieve it or prefer other contrary
evidence which he finds more persuasive.
But anything, which, if accepted would tend
as a matter of logic to render it more
probable than before the inquired about
fact or situation exists or does not exist is
evidence.”
The above explanations are useful to a
point but the term evidence is context
specific as well. It can thus be used in
different ways. Consider the following
statements:
‘In August of last year, Nduto, according to the
evidence, made a statement to his mother
about the unhappy life of Mrs Thom.’
‘The damp mud on his boots was evidence
that he had left the house earlier that evening.’
‘“You must not tell us what the soldier, or any
other man, said, Sir,”interposed the judge, “it’s
not evidence”.’
NOTES:
In the first of these examples, ‘evidence’
was used to refer to what had been said in
court by one or more witnesses.
In the second, ‘evidence’ referred to a
relationship of relevance between the fact
of there being damp mud on boots and the
fact that he had left the house earlier that
evening.
In the third example, ‘evidence’ was used
in a restricted sense to cover only those
legally admissible things that a witness
could say in court.
As lawyers, you will be concerned with evidence in
all these senses.
 You may have to advise on what information
should be obtained from potential witnesses
to substantiate or rebut a claim at trial.
 You may have to challenge the evidence of an
opponent’s witness on the basis that it is
irrelevant, or construct an argument to
demonstrate the relevance of what your own
witnesses have to say.
 You may have to consider whether the law
permits an admittedly relevant item of
information to be given in evidence, or
whether the item is caught by some rule or
principle of exclusion.
Kinds of Evidence and Glossary of some of
the technical terms commonly Used

Lecture 4
08/12/2015
Kinds of Evidence and Glossary of some of
the technical terms commonly Used
Oral evidence: Means all statements
which the court permits or requires to be
made before it by witnesses, in relation
to matters of fact under inquiry.
This definition has been amended recently
through the Written Laws (Miscellaneous
Amendments) Act, 2011. It now reads as
follows:
“Oral Evidence”:
Means all statements which the court
permits or requires to be made before it
by witnesses, being physically present at
the time of making the statement or by
use of other means of communication
including teleconference or video
conference in relation to matters of fact
under inquiry.
Thus it may be made : Orally, in writing;
or by signs and gestures.
Real evidence:

Means material objects or physical things which

may be presented to the court.

Opinion evidence:

Evidence based on inferences (mental

impressions) is, for the purpose of the law of
evidence, called opinion.
Documentary evidence:
The phrase “documentary evidence” is
defined by section 3(1) of the Evidence Act
[Cap 6 RE 2002] to mean “all documents
produced as evidence before the court.”
It is evidence in a written form which
includes conventional symbols that may be
used to prove or disprove a certain fact in
issue or relevant fact.
Elliot: Documentary evidence consists of
documents produced for inspection by the
court.
Direct evidence:

 It is the testimony of a witness as to the

existence or non existence of a fact or fact in
issue. It is opposed to circumstantial evidence.

 In relation to section 62 of the Act, it

means facts perceived by a witness by his or
her own senses. In this sense, it does not
exclude circumstantial evidence.
Circumstantial evidence:
It is a testimony of a witness to other facts
(relevant facts) from which the fact in issue may
be inferred. It is evidence which tends to prove
factum probandum indirectly. It is also called
“presumptive evidence.”
In the case of Makame Junedi Mwinyi v. SMZ
[2000] TLR 455 at 463C-E, Tumaka D/CJ
said: “What is circumstantial evidence? Simply
put, theses are circumstances in the form of
evidence which enable a court to reasonably
infer or conclude the existence or non-existence
of a fact in issue or the guilt of an accused
person. …”
E. G.
Suppose A is charged with the murder of B.
At the trial, a witness (C) may give evidence
on behalf of the prosecution that he saw A
stab B. Another witness (D), states that he saw
A running away from a place where B’s corpse
was found, with a blood stained knife in his
hand. The evidence given by witness (C) is
direct while the one given by witness (D) is
“circumstantial.”
• Hearsay evidence:
Oral or written statements made by persons
who are not parties and who are not called
as witnesses which are inadmissible to prove
the truth of the matters stated. Sometimes it
is called unoriginal, derivative or indirect
evidence.
Original evidence : is the evidence of a
witness who deposes to facts of his own
knowledge.
Best evidence – the so-called best evidence
rule precludes the production of inferior
evidence if the best evidence could be
produced.
Inferior evidence: inferior evidence is that
which suggests that better evidence might be
available, eg. a copy of a document which
suggests that somewhere the original exists,
or a description of an object by a witness
when the object could be produced for
inspection.
Primary and secondary evidence:
The terms are used in relation to the
documentary evidence. Primary evidence of
a document is its original whereas the
secondary evidence refers to a copy or oral
explanation of a document.
Section 64(1) of the Evidence Act provides
thus, “Primary evidence means the
document itself produced for the inspection
of the Court.” See section 65 on the
“secondary evidence.”
• Corroborative evidence (corroboration):
Although it has been said that “corroboration”
is not a technical term, but simply means
“confirmation” or “support”, it remains the
case that in order to amount to
“corroboration” evidence must emanate from a
source independent of the witness to be
corroborated and must implicate the accused in
the material particular.
• In Makame Junedi Mwinyi v. SMZ [2000] TLR
455 at 463F, Tumaka, D/CJ remarked thus
“corroboration is simply independent evidence which
supports or confirms as true, the principal evidence.”
 Lecture 5
15/12/2015
(Recap)
RELEVANCY AND ADMISSIBILITY
The Concept of Relevancy/ Relevance
(i) “Relevancy” defined
The word “relevancy/relevance” is not
defined in the Act. Instead, the Act defines
another related word “relevant”. Section 3
of the Act defines the word “relevant” thus,
"relevant" in relation to one fact and
another, means the one is connected with
the other in any of the ways referred to in
the provisions of this Act relating to the
relevancy of facts.
D.W. Elliot, (1987), Elliot and Phipson Manual of
the Law of Evidence, 12th edn, Sweet & Maxwell,
London, p.10:
Relevancy is a relationship between one fact and
another wherein, according to the rules of logic
and the common experience of men, the
existence of the one renders probable the
existence or non-existence of the other.
A fact which is not actually in issue but it is in
relationship with a fact in issue is a relevant
fact.
Relevancy is not a legal concept, being rather
one of logic and common sense, but the law
insists on its presence, by ruling that all
irrelevant facts are inadmissible.
In an English case of DPP v Kilbourne [1973] AC
729 at 759, the court had the following to say as
regards the term “relevancy” :

“Evidence is relevant if it is logically probative or

dis-probative of some matter which requires
proof… evidence which makes the matter which
requires the proof more or less probable.”

The word “probative” means having tendency

of proof. Evidence is said to have probative
value if it tends to prove or disprove an issue. In
other words, evidence is probative if it is
sufficiently useful to the court in deciding a
certain matter in controversy.
Adrian Keane: “relevance is a question of
degree determined, for most part, by
common sense and experience.”
THUS:
when one talks of relevancy/relevance, in the
context of law of evidence, he or she is simply
referring to the logical connection or
relationship of facts. Nothing more, nothing
less!
 …
(ii) Fact
From the above definition, relevancy is
defined in terms of facts.

BUT what does the term fact means?

The English academic and philosopher,
Jeremy Bentham, classifies facts as either
physical or
psychological facts,
(or, to use another terminology, internal or
external)
Physical or external facts:
• are those which can be perceived by the
senses externally.
Psychological or internal facts:
• are those which cannot be perceived by the
senses.
In drafting the Indian Evidence Act 1872,
the Select Committee had the following to
state:
“All rights and liabilities are dependent upon
and arise out of facts, and facts fall in two
classes, those which can, and those which
cannot, be perceived by the senses. Of facts,
which can be perceived by the senses, it is
superfluous to give examples. Of facts, which
cannot be perceived by the senses, intention,
fraud, good faith, and knowledge may be given as
examples. But, each class of facts has, in
common one element, which entitle them to
the name of a facts ─ they can be directly
perceived either with or without the
intervention of senses.”
The Evidence Act thus defines “fact” in the
way that reflects the above classification:

 any thing, state of things, or relation of

things, capable of being perceived by the
senses;

 any mental condition of which any person

is conscious;
(iii) Fact in issue
Another closely related concept is a “fact in
issue”. In simple words, it is a fact which is
asserted by one party but denied by the
other. The Evidence Act defines “fact in
issue” thus:
“any fact from which, either by itself or in
connection with other facts, the existence,
non-existence, nature or extent of any right,
liability or disability, asserted or denied in any
suit or proceeding, necessarily follows.”
 D.W. Elliot, (1987), Elliot and Phipson Manual of the
Law of Evidence, 12th edn, Sweet & Maxwell, London,
p.10:
“A fact in issue is one which is directly in
contention between parties i.e. one which the
plaintiff (or prosecutor) must establish to win
his case, or which the defendant must establish to
succeed in some defence which is open to him.”
• Illustration:
A is tried for the murder of B by beating him with a club
with intention of causing his death.
• At A’s trial the following facts are in issue:
• A’s beating B with the club;
• A’s causing B’s death by such beating;
• A’s intention to cause B’s death.
 ….
(iv) Principal and Evidentiary Facts
Tapper notes that if the law is to require all claims
to be proved by direct evidence, then many claims
would fail for lack of proof.
“At some stage, resort almost always has to be
had to ‘circumstantial evidence’ which may be
defined as any fact (sometimes called an
‘evidentiary fact’, ‘factum probans’ or ‘fact relevant
to an issue’) from the existence of which the
judge or jury may infer the existence of a fact in
issue (sometimes called a ‘principal fact’ or
‘factum probandum’).
Thus, the fact sought to be proved is called:

 the ‘principal fact’ (or factum probandum).

But other facts which are proved in order to

establish the factum probandum are called
“evidentiary facts” (factum probans) or collateral
facts.
Conclusion
Relevancy: thus, connotes connectivity of facts.
This connectivity is largely governed by logic
and experience of human life.
 The Concept of Admissibility
The term “admissibility” is nowhere defined in
the Act.

BUT: it generally refers to the principles that

determine whether or not or particular fact or
evidence may be received by the court or not.

Admissibility of facts is, for the large part,

dependent on relevancy.
Thus, as it is said, “relevancy” is the test of
admissibility. It means that in order for a certain
fact to be admissible in evidence, it has to be
“relevant.”
Generally, for a fact to be admissible it has to
be,
(i) relevant, and
(ii) declared relevant (admissible) by the law of
evidence.
However, relevancy is not the only test of
admissibility. Thus, not every relevant fact is
admissible in evidence. Some facts which are
relevant are excluded by the law. For instance,
hearsay, evidence of character, etc. are excluded
by the law although they may be relevant to the
fact in issue. These facts are excluded on
account of a certain policy or that they are
remotely connected to the fact in issue.
Other relevant facts excluded are as follows:
Privilege relating to official records Act, section 132,
Information regarding commission of offences,
section 133, and
Professional communication, section 134.

• Again, though admissibility is largely

dependent on relevancy, sometimes the law
declares certain facts which are otherwise
irrelevant as admissible. Such facts are
admissible for certain purpose. For instance,
facts admissible under the following sections of
the Evidence Act are irrelevant but are
admissible for certain purposes.
• E.g.
Section 11 (facts necessary to introduce the fact
in issue);
 Section 13 (facts which are irrelevant but
become admissible for some purpose);
Section 14 (facts that may assist the court to
determine quantum of damages).
Section 155 (Questions lawful in cross-
examination); irrelevant questions may be asked
and a witness compelled to answer
Section 164 (Impeaching the credit of a witness);
irrelevant questions or facts may be adduced.
While “relevancy” is controlled by logic or
human experience, “admissibility” is governed
by law.
• As it is stated in Sarkar,
“What is legally receivable is admissible whether it
is logically probative or not. For all practical
purposes ‘relevant’ [as used in the Indian
Evidence Act, 1872] means what is legally
admissible in evidence. Evidence which is legally
admissible should be received by the court, unless
there is any legal reason for its rejection. Again, if
evidence is admissible on one ground, it will not
be rejected because on some other ground it
would be inadmissible[R v. Bond, 1906 2 KB 389,
pp. 411,412, per Jelf, J].”
 …

LECTURE 6
15/12/2015

Admissibility of facts under section 7 of the

Act
Section 7 of the TE Act is a general provision
on the admissibility of facts in the Act.
It provides that:
Subject to the provisions of any other law, evidence
may be given in any suit or proceeding of the
existence or non-existence of every fact in issue, and
of such other facts as are hereinafter declared to be
relevant, and of no others.
• This provision may be divided in three parts
for ease of discussion.

(i) subject to the provisions of any other law,

(ii) evidence may be given in any suit or proceeding,
of :
(a) the existence or non existence of
every fact in issue,
(b) the existence or non existence of such
other facts hereinafter declared relevant
(iii) and of no others.
1. “Subject to the provisions of any other law”
 This phrase indicates that the Evidence Act is not
exhaustive in so far as the law of evidence is
concerned.
 There could be other laws that regulate production of
evidence in judicial or other proceedings.
 E.g.,:
(a) The Criminal Procedure Act, [Cap 20 RE 2002]
regulates the order of production of evidence.
(b) The Civil Procedure Code, [Cap 33 RE 2002] is another
law that regulates some evidential matters—the order of
giving evidence, affidavits, discovery and inspection,
framing of issues, admissions, etc.
(c) Also section 8 of the Notaries Public and Commissioners
for Oaths Act, [Cap 12 RE 2002] regulates affidavits.
2. What sorts of facts are to be proved or
evidence is to be given?
Part two of the section tries to answer this
hugely important question. According to it only
two types of facts are to be given:
(i) facts in issue, and
(ii) other facts as declared relevant by section 8
et sequente.
Thus, all facts which are directly in issue are
admissible under section 7 of the Act but other
facts which are collateral to the facts in issue are
admissible under section 8 of the Act et sequente
3. “Of no others”
• This means that section 7 excludes
everything which is excluded by the purview
of other sections that follow in the Act. All
evidence tendered must, therefore, be shown
to be admissible under this or some other of
the provisions of sections that follow, or
provisions of some other statute, or one
which will be enacted after this Act.
What is the object of section 7 of TEA?

The object of this section is to limit or

restrict the scope of judicial investigation
to certain boundaries beyond which it
cannot go.

The maxim Frustra probatur quod probatum

non relevant (it would be frustrating and
disgusting to prove facts which are
irrelevant).
General comments
It should be remembered that the whole
chapter one of the Evidence Act [Cap 6 RE
2002] is dedicated to relevancy facts: including
part one which is titled “General” together with
succeeding parts on admissions, confessions,
statements by persons who cannot be called as
witnesses statements under special
circumstances; extent to which statement is to
be proved; relevancy of judgments; relevancy of
opinions of third persons; and relevancy of
character, are all concerned with relevancy of
facts.
The use of the word “relevant” in the Act
The word “relevant” is used in the Evidence
Act in two different senses:
(i) one fact connected to another (i.e. relevant),
(ii) admissible

Admissibility of a fact depends on whether

it is declared to be relevant. For the reasons
best known to themselves the framers of the
Indian Evidence Act 1872 deliberately
decided not to employ the term “admissible”
but instead used the term “relevant.”
For instance, section 13 says “When facts not
otherwise relevant (1) become relevant (2).”

The other way of stating this is “When facts

not otherwise relevant become admissible.”
Thus, the word “relevant” (numbered 1)
means connected (or relevant in the natural
meaning of that word) but the second one
(numbered 2) means “admissible.”
RELEVANCY OF FACTS CONNECTED
WITH THE FACT IN ISSUE

(Sections 8 ─ 18 of the Evidence Act,

(Cap 6 RE [2002])
It was stated that section 7 is a general
provision on the relevancy and admissibility.
It restricts facts admissible to
(i) facts in issue, and
(ii) relevant facts (collateral facts).
The first category is admissible under
section 7
sections 8 to 18 (and subsequent sections)
deal with the second category.
Sections 8 ─ 18: thus, deal with relevant facts
or facts which are connected with the fact in
issue. They are called “collateral facts”, for they
are connected with the fact in issue by way of
Induction.
• Section 8: Relevancy of Facts Forming Part
of Same Transaction
This provision provides thus,
• 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.
• Illustrations
(a) A is accused of the murder of B by beating
him. Whatever was said or done by A or B or
the (C) (a bystander) at the beating, or so
shortly before or after it as to form part of the
transaction, is a relevant fact.
(b) A is accused of waging war against the
Government of Tanzania by taking part in an
armed insurrection in which property is
destroyed, troops are attacked and jails are broken
open. The occurrence of these facts is relevant,
as forming part of the general transaction, though
A may not have been present at all of them.
(c) A sues B for a libel contained in a letter
forming part of a correspondence. Letters
between the parties relating to the subject out of
which the libel arose, and forming part of the
correspondence in which it is contained, are
relevant facts, though they do not contain the libel
itself.
(d) The question is, whether certain goods
ordered from B were delivered to A. The goods
were delivered to several intermediate persons
successively. Each delivery is a relevant fact.
The Principle
Evidence admissible under section 8 of the
Act is what is known as “res gestae” under
the English law.
The word “Res gestae” (singular) or “res
gesta” (plural) is a Latin word which means
“things done.”
Although the literal meaning of that term
means “things done”, it is used in the law of
evidence to include “words spoken”.
It has been stated that: “Under the inclusionary
common law doctrine of res gestae, a fact or a
statement of fact or opinion, which, is so closely
associated in time, place and circumstances with
some act or event, which is in issue, that it can be
said to form a part of the same transaction as the act
or event in issue, is itself admissible in
evidence.”

Transaction
• The law says that res gestae are facts closely
related to the fact in issue as to “form part of
the same transaction”. What is a “transaction”?
Sir James Stephen, in Article 3 of his Digest
of the Law of Evidence, defines a
transaction in the following words:

“A transaction is a group of facts connected

together as to be referred to by a single legal
name, as a crime, a contract, a wrong, or any
other subject of inquiry which may be in
issue.”
 …
THUS:
In order to determine whether facts form part
of the same transaction, the following aspects
must be taken into account:

(i) proximity (i.e.nearness) of time,

(ii) unity of place,
(iii) community of purpose or design, and
(iv) continuity of action.
Res gestae and hearsay evidence
• Res gestae is taken to be an exception to the
hearsay rule. As a general rule, hearsay
evidence (i.e. evidence which is not direct) is
not admissible as per section 62 of the Act
unless it falls under one or more of the
recognised exceptions to the rule.
• A statement made by a person at the time when
the fact in issue was in process may be produced
by another person as res gestae in evidence as an
exception to the rule against hearsay. The case of
Kamara (or Susu) v. R. (1950 – 56) ALR 309
cited below is a good elaboration of this point.
 …
Rao states as follows: “The remarks made by persons
other than the eye-witnesses could only be hearsay,
because they must have picked the news from others.
Hearsay evidence of statement by a bystander as to the
occurrence would be admissible as a part of res gestae
only, if it was made at the time of the transaction was
taking place, or so shortly before or after it, as to form
part of the same transaction. If the transaction has
terminated when the statement was made, it would be
irrelevant.
A statement made by a bystander shortly after the
incident in relation to the same transaction, would be
admissible in evidence, provided, it is made in conditions
of involvement or pressure or is forced out of him by the
excitement or emotion generated by the event perceived
by him ie by way of psychological reaction to the
incident without there being such interval of time as to
permit reflection or concoction.”
 …
• Rationale
Lord Normand in Teper v. R. (1952)2 All ER
447 at 448, stated the following : “It [Res
gestae] appears to rest ultimately on two
propositions — that human utterance is both a
fact and a means of communication, and
human action may be so interwoven with
words that the significance of the action
cannot be understood without the correlative
words and disassociation of the words from
the action would impede discovery of truth.”
• Some decided Cases on Res Gestae
• Teper v. R. [1952]2 All ER 447
“To qualify as res gestae, it is essential that the
words sought to be proved, if not absolutely
contemporaneously with the act or event, at
least should be so clearly associated with it
that they are part of the thing being done, and
so an item or part of the real evidence and not
merely a reported statement….There must be
unity of place, time, purpose, design as
qualifiers of contemporaneity of the
transaction.”
• Rex v. Beddingfield (1879) 14 Cox CC 341
In this case a woman came out of a room entered
by the accused a minute or two holding her cut
throat and said, “Oh aunt, see what Beddingfield has
done to me”. Shortly thereafter she died. In the trial
of the accused this statement was sought to be
introduced in evidence as part of res gestae but
Cockburn, CJ refused. He gave reasons for refusal
to admit it in evidence when he said:
“for it was not part of anything done, or
something said while something was being done,
but something said after something done.”
• Commentators and other judges have,
however, criticised this decision saying that
it applied the doctrine of res gestae too
strictly.
• For instance, in Ratten v. R. [1972] AC 378
(PC), Lord Wilberfoce said, “though in a
historical sense the emergence of the victim
could be described as a different “res” from
the cutting of the throat, there could hardly be
a case where the words carried more clearly the
mark of spontaneity and intense involvement.”
 …

• Indeed, the statement in Beddingfield’s Case

was so immediate in point of time (made
after just one minute or two) to the fact in
issue and therefore it should have been
admitted.
• What do you think? Was this decision
correct in view of our law considering
illustration (a) above?
R. v. Premji Kurji (1940)7 EACA 58
 In this case, the Counsel (Mr Ishmael) for the
appellant (Premji Kurji) objected to admission of
evidence of one Jamnadas. The facts were that the
appellant killed the deceased who was the brother of
Jamnadas. Before killing the deceased the appellant
had wounded Jamnadas who was working in his
brother’s (deceased) shop.
 The deceased was in the godown of the shop nearby.
After wounding Jamnadas the accused is alleged
tohave said, "I have finished you and am going to
show your brother" or according to another witness,
Tulsidas, "I am going to finish your brother".
 Immediately afterwards the accused was seen at the
godown standing over the deceased dagger in hand.
• Held: “the two occurrences are so closely
interconnected that the wounding of the
deceased's brother must be regarded as part of
the Res gestae on the trial of the appellant for the
murder of the deceased.”

Thus: “when two acts of an accused are so

interwoven as to form part of the same transaction it
is not proper to shut out evidence of one of the
acts even though it may involve introducing
evidence of the commission of another offence by
the accused. The prosecution is entitled to put
forward their whole story, otherwise it may be
quite impossible properly to appreciate the nature
of and reasons for the act in respect of which the
accused is being charged.”
• R. v. Christie (1914) AC 545
Christie was convicted of indecent assault of a
small boy. The boy described the assault and
identified the prisoner but he was not
questioned as to a previous identification nor
was he cross-examined. The boy’s mother then
gave evidence that, shortly after the act
alleged, she and the boy went towards the
prisoner, and the boy said, “That is him”
describing the assault. Christie the said, “I am
innocent.”
Was this Resgestae?
• Held:
(i) The boy’s statement was so separated by
time and circumstances from the actual
commission of the crime that it was not ….
admissible as part of the res gestae.

(ii) The statement was admissible as part of an

act of identification.
• Kamara (or Susu) v. R. (1950 – 56) ALR 309
This is a Sierra Leonean case. The appellant
was convicted of murder on the strength of
evidence of one person who heard the words
uttered by the deceased while the crime was
actually being committed and another who
heard her dying declaration. On appeal to
WACA (West Africa Court of Appeal) it was
considered whether the evidence was
admissible.
• The facts were that the witness heard this statement
which was made by the deceased: “Sister Posseh,
although you are going, Susu is killing me.” The
witness was scared; she did not return. She ran away
to narrate what she heard to other people. Later on,
the deceased came out holding her gut and cried
before another witness: “my husband has killed me.”
• Held:
“In our opinion the statement alleged by witness
Posseh, to have been made by the deceased while the
crime was actually being committed was admissible as
part of res gestae; and …. that the statement that she is
alleged by the Town Chief to have made ─ “my
husband has killed me” ─ was admissible as a dying
declaration.”
• O’Hara v. Central SMT Co. Ltd 1941 SC 363, 2nd
Digest Supp.
In this case, which was a civil action, the event
was injury to a passenger brought about by a sudden
swerve of the omnibus in which was travelling. The
driver of the omnibus said in his evidence that he
was forced to swerve by a pedestrian who hurried
across his path. Hearsay evidence of what was
said by a man on the pavement at the scene of the
accident as soon as the injured party had been
attended was held to be admissible in corroboration
of the driver’s accident. But what was said twelve
minutes later and away from the scene by the
same man was held not part of res gestae.
• Noor Md v. Imtiaz, A 1940, O.130 (Indian
case) it was stated that:
“The declarations are admitted when they
appear to have been made under the
immediate influence of some principal
transaction, relevant to the issue and are so
connected to it. It should appear that they
were made without premeditation or artifice
and without a view to consequences, that they
are the spontaneous utterances and the natural
result of the act they characterise or
elucidate.”
PLEASE: read the following cases at your
own time:

R. v. Premji Kurji (1940)7 EACA 58

Ramadhani Ismail v. The Crown, 7 Z.L.R. 36
R. v. Andrew [1987] 1 All ER 513 –this being
a modern case where the House of Lords
discussed the doctrine of res gestae in detail
[a must read case].
 The following are thus conditions for Res Gestae
application under Section.8:
(a)The Statement must explain, elucidate or characterise the
incident in some manner. (See R.v. Bedingfield (1879) 14
Cox C.C. 341) or R. v. Premji Kurji (1940) 7 EACA 58.
(b)The Statement must be spontaneous or contemporaneous,
but not a mere narrative of a completed past event. (See R. v.
Christie [1914] AC 5450.
(c)The statement must be a statement of fact and not of
opinion.
(d)The statement must have been made either by a participant
in the act or by a person who has himself witnessed the act.
(e)The statement made by the bystander would be relevant
only if it is shown that he was present at the time of the
happening of the event and witnessed the same.
 Additional Cases to Read
 Omuroni v Uganda [2002]2 EA 531.
 Alley Ali and another v. R. [1973] LRT n. 43
 Abdul Muganyizi v. R. [1980] TLR 263.
 Protas John Kitogole and Another v. R. [1992] TLR 51.
 Dhalay v. R. [1995-1998]1 EA 29.
 Nathaniel Mapunda and Benjamin Mapunda v. R.
[2006] TLR 395.
 Ahamadi Chali v. R. [2006] TLR 313.
 R. v. Betram Mapunda and another [1999] TLR 1.
 R. v. Kerstin Cameron [2003] TLR 84.
 LECTURE 7

22/12/2015

Section 9: Facts which are the Occasion,

Cause or Effect of facts in issue
Section 9 of the TEA, 1967 provides thus,

Facts which are the occasion, cause or effect,

immediate or otherwise, of relevant facts or facts
in issue or which constitute the state of things
under which they happened, or which afforded an
opportunity for their occurrence or transactions,
are relevant.
 Principally, the relevancy of facts is an issue required to be
determined by human experience.
 In principle, ‘what has been the effect of a particular cause and what
has been the constant cause of a particular effect in the past will be the
same in future’.
Consider this Illustration: The question is whether A murdered B.
 Marks on the ground, produced by a struggle at or near the place where the
murder was committed, are relevant facts.
 If human blood is found at the scene of accident, it can be inferred
that someone must have been injured. The bleeding is the effect of the
injury and the injury is the cause of the bleeding.
 In murder case or even in rape case, for instance, marks found near
or at the place of the scene of crime or the state of clothes worn by the
accused or the victim during the incident may, on account of the fact that a
struggle had ensued between the accused and the victim, are all
relevant and admissible facts under Section 9 of TEA as effect of a
fact in issue.
Illustrations:
(a) The question is, whether A robbed B. The
facts that, shortly before the robbery, B went to a
trade fair with money in his possession, and that
he showed it or mentioned the fact that he had it, to
third persons, are relevant.

(b) The question is, whether A murdered B.

Marks on the ground, produced by a struggle at or near

the place where the murder was committed, are
relevant facts.
(c) The question is, whether A poisoned B.
The state of B's health before the symptoms ascribed to
poison, and habits of B, known to A, which afforded
an opportunity for the administration of poison, are
relevant facts.

 Scope of the section 9.

• Contrary to section 8, which deals with a narrow
species of facts (i.e. facts which form part of the
same transaction), section 9 is wider in scope.
• It embraces a large area of facts and tries to solve
difficulties of section 8 in establishing what a
particular fact forms a part of the same transaction.
• It admits facts which though do not form a
part of the same transaction but are connected
to the fact in issue in the specified modes.
These modes are:
(i) as being the occasion of the relevant facts;
(ii) as being their cause or effect;
(iii) as giving opportunity for its occurrence; and
(iv) as constituting the state of things under
which it happened.
According to Sarkar, these modes of
connection are actually different aspects of
causation.
(i) As being the occasion of the relevant facts
• Occasion is a “happening” or “event”
which is connected to the fact in issue
(robbery).
Illustration (a) above relates to this mode of
connection. It says: The question is, whether A
robbed B. The facts that, shortly before the
robbery, B went to a trade fair with money in his
possession, and that he showed it or mentioned
the fact that he had it, to third persons, are
relevant.
• (ii) As being their cause or effect
These are facts that are the cause of the fact in
issue or the effect of the fact in issue.
Illustration (b)above covers this mode.

In an Indian case, Sidik v. R, 1941 Kar 525, it

was held that evidence that there were foot prints
at or near the scene of offence or that the foot-prints
came from a particular place or led to a particular
place, is admissible.
• (iii) As giving opportunity for its
occurrence
Facts that show that a person had an
opportunity to cause the fact in issue are
relevant and admissible under section 9.
• Illustration (c) relates to this mode.
Read
• John Mgindi v. R. [1992] TLR 377
 As for “Exclusive Opportunity”: Consider that the
question is whether A poisoned B.

• The state of B’s health before the symptoms

ascribed to poison, and habits of B, known to A,
which afforded an opportunity for the
administration of poison, are relevant facts.

• It is clear that for a crime to be committed there must

necessarily be an opportunity for the culprit or any
other person to commit it. By screening the number
of people with such opportunity to commit it the
number becomes narrow. It is worth noting, however,
that the evidence of opportunity is not reliable on its
own but can only stand with other pieces of
substantial evidence offered in court.
 …
• “Exclusive opportunity” evidence, however may be unsafe
to base conviction on it.

Consider the following story:

• X, a maid servant was left in the house alone on a Sunday

and the rest of inmates had gone to church for prayers.
When they returned, they found some precious jewellery
missing. They suspected that she was the thief. Reporting
the incident to the Police, X was arrested, charged and
convicted on the basis that being left alone was the
exclusive opportunity she used to commit the crime. After
serving her sentence and upon release, X was walking down
street for her shopping. Behind her came a gentleman who
tapped her on the shoulder and uttered this statement:

‘Oh! What a beautiful creature is this in nude”.

• X’s memory was triggered and she remembered that on
the day when the precious jewellery went missing, this
man, being a butcher who used to supply meet to the
house, had brought minced meat and was directed to
store it in the store room. It happened that this butcher
had hid in the house pretending that he had gone and
without X’s notice, X had shut the door and stripped
naked looking to herself on a mirror and said to herself:
‘Oh! What a beautiful creature is this in nude”.

• Thus, since there was none in the house at the time, it

means that the butcher had heard this remark and
repeated it to her in the street on the material day. He
must also have been the one responsible for the theft.
This shows that the evidence of “exclusive
opportunity” is unsafe evidence to base conviction on
it.
• (iv) As constituting the “state of things”
under which it happened
The “state of things” refers to the condition of
a thing in relation to the fact in issue.
Illustration (c) describes such a state. It stated:
The question is, whether A poisoned B.
The state of B's health before the symptoms ascribed to
poison, and habits of B, known to A, which afforded
an opportunity for the administration of poison, are
relevant facts.
Some Decided Cases
John Makindi v. R. [1961] EA 327
• The appellant (Makindi) appealed against
conviction and sentence for manslaughter of a
small boy, to whom he was in loco parentis
relationship by beating him so severely that he
died. It was established in evidence that the
appellant had told the deceased, “As you made
me to be imprisoned, I will beat you until you
die.” Evidence on the previous beatings of the
deceased boy the appellant was led by the
prosecution. On appeal it was considered
whether such evidence was properly admitted.
• Held: The evidence was admissible under s.7
of the IEA (s.9 of T/Evidence Act) in
explanation and substantiation of the cause
of death and also under ss.8 and 14 of the
IEA (ss. 10 and 16 of the Evidence Act) as
showing the motive in the appellant for
revenge on the deceased and appellant’s ill-
will towards him.
James Clifford Brabin and another v. R.
(1947) 14 EACA 80
• In this case the appellants were convicted of
corrupt transactions. It was established in
evidence that the appellants had received
Shs 1000/= as a bribe from one Kara. It was
shown that the appellants had previously
(five months ago) received bribe from the same
Kara.
• Held: evidence of previous transactions was
rightly admitted as constituting part of the
“state of things.”
Cases to Read include:

Rex v. Brabin [1947] 14 EACA 80.

R. v John Makindi [1961] EA 327.
R. v. Premji Kurji (1940) 7 EACA 58.
Section10: Motive, preparation and previous or subsequent
conduct
• Section 10 of the Act provides as follows:
(1) Any fact is relevant which shows or constitutes a motive or preparation
for any fact in issue or relevant fact.

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

(3) When the conduct of any person is relevant, any statement made by
him or in his presence and hearing which affects such conduct is relevant.

(4) The word "conduct" in this section does not include statements, unless
those statements accompany and explain acts other than statements; but this
provision shall not affect the relevancy of statements under any other section
of this Act.
Illustrations:
(a) A is tried for the murder of B. The facts
that A murdered C, that B knew that A had
murdered C, and that B had tried to extort
money from A by threatening to make his
knowledge public, are relevant.
(b) A sues B upon a bond for the payment of
money. B denies the making of the bond. The
fact that, at the time when the bond was
alleged to be made, B required money for a
particular purpose, is relevant.
(c) A is tried for the murder of B by poison. The
fact that, before the death of B, A procured
poison similar to that which was administered to
B, is relevant.

(d) The question is, whether a certain document is

the will of A. The facts that, not long before the
date of the alleged will, A made inquiry into
matters to which the provisions of the alleged will
relate, that he consulted advocates in reference to
making the will, and that he caused drafts of
other wills to be prepared of which he did not
approve, are relevant.
(e) A is accused of a crime. The facts that, either
before or at the time of, or after the alleged crime,
A provided evidence which would tend to give to
the facts of the case an appearance favourable to
himself, or that he destroyed or concealed
evidence, or prevented the presence or procured
the absence of persons who might have been
witnesses, or suborned persons to give false
evidence respecting it, are relevant.
(f) The question is, whether A robbed B. The facts
that, after B was robbed, C said in A's presence-
"the police are coming to look for the man who
robbed B," and that immediately afterwards A ran
away, are relevant.
(g) The question is, whether A owes B shillings 10,000.
The facts that A asked C to lend him money, and that
D said to C in A's presence and hearing- "I advise you
not to trust A, for he owes B 10,000 shillings," and that
A went away without making any answer, are relevant
facts.
(h) The question is, whether A committed a crime. The
fact that A absconded after receiving a letter warning
him that inquiry was being made for the criminal, and
the contents of the letter, are relevant.
(i) A is accused of a crime. The facts that, after the
commission of the alleged crime, he absconded, or was
in possession of property or the proceeds of property
acquired by the crime, or attempted to conceal things
which were or might have been used in committing it,
are relevant.
(j) The question is, whether A was ravished.
The facts that, shortly after the alleged rape, she
made a complaint relating to the crime, the
circumstances under which, and the terms in
which, the complaint was made, are relevant.
The fact that, without making a complaint,
she said that she had been ravished is not
relevant as conduct under this section, though
it may be relevant as a dying declaration under
section 34 (a), or as corroborative evidence
under section 166.
The scope
This section essentially admits facts related to
three things:
(i) motive,
(ii) preparation, and
(iii) conduct
(a) antecedent (previous) to the fact in
issue,
or
(b) subsequent to the fact in issue.
(i) Motive
Actions are done with a motive behind. This is a matter of common
knowledge and logic. Motive is a psychological fact. It is a fact which
moves or prompts a man to do a particular act.

Motive should not be confused with an “intention” which means a

desire to achieve a certain result. While “intention” is a deliberate
desire to achieve a certain result, “motive” answers the question
why one aims to achieve that result.

Intention is the prior knowledge of the act coupled with the desire to
do it.

“Intention” is usually an ingredient of an offence while “motive” is

not. Although motive is not an ingredient of the offence its proof
helps the court to come to a correct conclusion when there is no
direct evidence. But it must be remembered lack of motive does not
negate any offence for it is immaterial.
Consider the following:

• X walks along the street. He finds a starving kid, almost dying of

kwashiorkor. He feels pity of him and went into a supermarket
where in he steals a loaf of bread and a bottle of milk and feeds the
starving street kid. In this example:

-The motive is to feed the kid.

-The intention is to steal a loaf of bread and the
bottle of milk.

• From criminal law point of view, intention is of importance and not

the motive. It is the intention that forms the necessary mens rea in
such proceedings.

• In evidence, however, motive assumes importance. It is important

for the prosecution to explain the motive behind the commission
of a particular crime. Sometimes it may not be easy to establish
motive since this is an internal matter within a person’s heart known
better to himself and to God.
The fact that the prosecution failed to establish
the motive for the crime is not a bar to conviction
where other clear evidence points to the guilty of
the accused. It has been repeatedly pointed out
by Courts that where the case of the prosecution
has been proved beyond all reasonable doubts on
basis of the materials produced before the Court,
the motive loses its importance. But in a case
which is based on circumstantial evidence,
motive for committing the crime on the part of
the accused assumes greater importance.
( See Tarseem Kumar vs Delhi Administration (18
August, 1994) (available at
(http://indiankanoon.org/doc/197261555 / (as
accessed on 23/11/2015)
In the case of John Makindi v. R. [1961] EA
327 which has been cited above, it was
established in evidence that the appellant
had told the deceased, “As you made me to
be imprisoned, I will beat you until you die.”
This was held to be admissible under
sections 8 and 14 of IEA 1872 (ss 10 and 16
of the EA) as showing the motive in the
appellant for revenge on the deceased and
appellant’s ill –will towards him.
• Illustration (a) is an instance that shows
motive.
(ii) Preparation
• Preparation consists in devising or arranging
the means or the measures necessary for the
commission of the offence.
• Preparation is to be distinguished from an
“attempt”. Attempt to commit the offence is a
direct movement towards the commission after
preparations are made.
Thus, the major difference between “preparation”
and an “attempt” is that while preparation
consists in devising or arranging means necessary
for the commission of an offence, while an
“attempt”, is the direct movement towards the
commission after preparations are made.
• Illustration (c) concerns preparation.
(iii) Conduct
• A conduct is the expression in outward behaviours of a
person. It is, in other words, an external behaviour of a
person. However, conduct should be distinguished from
“character” which is a person’s estimation by others.
• According to section 10(2), conduct of the following
persons is relevant:
(1) parties to the suit or proceeding or their agents,
(2) persons, an offence against whom is the subject
of proceedings.
• Conduct as stated by section 10 (2) is divided into two:
antecedent and subsequent.
• Illustrations (d) and (e) are instances of antecedent
conduct and illustrations (e) and (i) are instances of
subsequent conduct.
• Section 10 (3) answers the question as to
when silence could be regarded as a
conduct. Silence may in certain
circumstances amount to conduct under that
provision.
• Illustration (g) is an instance of silence,
which amounts to a conduct.
• Subsection (4) of Section 10 states that the
word “conducts” does not include
statements. In this respect, it has been noted
partly that: “what this explanation means is
that statements are not admissible as conduct
unless they accompany and explain acts other
than statements. The statements which
accompany and explain acts other than
statements are: (1) complaints, (2) pointing
out to the police the various places
connected with commission of crime.”
• Thus: the difference between a bare statement and
complaint is that to be a complaint the statement
must express some grievance.
• In this regard, Illustration (j) tries to explain the
distinction. That it is the complaint that is
admissible as a conduct but not the statement that
was made to any other person.
• In an Indian case, Raman v. Emperor, AIR 1921 Lah.
258, the accused was tried for rape of a young
widow called Nandoo. It was established that the
accused caught Nandoo in the field while she was
returning home and then raped her. She then
returned home and stood in one corners of the house
weeping. One of her relatives who was passing by
heard her; he approached her and questioned her
why she was crying. She narrated the incident of
rape and requested that person to inform her father-
in–law.
• The question was whether that statement
could be regarded as a complaint so as to be
brought under section 8 of IEA [similar to s
10(4) of TEA]. It was argued that Nandoo
only responded to a question. It was held
that where it appears that a person could
have made such a complaint, even without a
question being asked, particularly in this
case asking the person to inform her father-
in-law converted that into a complaint what
would have amounted to be a bare
statement.
• In another Indian case, Oueen v. Abdullah (1885)7
ILR All 385, it was held that any statement can
be admissible as conduct provided it is directly
influenced by the fact in issue.
• Read:
• Idi Waziri v. R [1961] EA 146
• Sewa Sigh Mandia v. R. [1966] E.A. 315.
• John Makindi v. R. [1961] E.A. 327.
• Mohammed Saeed Akrabi v. R. [1956] 23
EACA. 512.
• Lobo v. R. (1926) 10 KLR 55.
• Dafas jur v. R. [1954] 21 EACA 352.
Facts Explaining or Introducing Fact in Issue
– Section 11.
• 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 anything 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
so far as they are necessary for that purpose.
 Some Illustrations:

(a) The question is, whether a given document is the

will of A. The state of A's property and of his
family at the date of the alleged will may be
relevant facts.

(b) A sues B for a libel imputing disgraceful conduct to

A; B affirms that the matter alleged to be libellous is
true. The position and relations of the parties at the
time when the libel was published may be relevant facts
as introductory to the facts in issue. The particulars of
a dispute between A and B about a matter unconnected
with the alleged libel are irrelevant, though the fact that
there was a dispute may be relevant if it affected the
relations between A and B.
(c) A is accused of a crime. The fact that, soon
after the commission of the crime, A
absconded from his house, is relevant under
section 10, as conduct subsequent to and
affected by facts in issue. The fact that at the
time when he left home he had sudden and
urgent business at the place to which he went,
is relevant, as tending to explain the fact that
he left home suddenly.

The details of the business on which he left are

not relevant, except in so far as they are necessary to
show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract of service made by
him with A. C, on leaving A's service, says to A-"I am leaving you
because B has made me a better offer." This statement is a relevant
fact as explanatory of C's conduct, which is relevant as a fact in
issue.

Principle
• S.K. Sarkar & Ejaz Ahmed (p.148): “There are incidents which
though not strictly constituting the fact in issue, may be regarded
as forming part of it, in the sense that they accompany, and tend
to explain, the main fact….”

• Rao (p.856): There are many incidents, which, they may not
strictly constitute a fact in issue, may yet be regarded as forming
part of it, in the sense that they accompany and tend to explain
the main facts, such as identity, names, dates, places and the
description, circumstances and relations of parties and other
explanatory and introductory facts of a like nature.”
 Scope
The scope of facts made relevant by this section may be classified as
follows:

(i) facts necessary to explain or introduce a fact in issue or relevant

fact;

(ii) facts which support or rebut an inference suggested by a fact in

issue or relevant fact;

(iii) facts which establish the identity of anything or person whose

identity is relevant;

(iv) facts which fix the time and place at which any fact in issue or
relevant fact happened;

(v) facts which show the relation of parties by whom any fact in
issue or relevant fact was transacted.
The five categories of facts are admissible, but not generally.
They are relevant only, in so far as they are necessary for the
purpose indicated in each category.

(i) Facts necessary to explain or introduce a fact in issue or

relevant fact

In giving evidence it is not practically possible to jump to the

fact in issue. The court requires certain introductory facts so
as to have a correct and a proper understanding of the facts in
issue.
• Illustrations (a) and (b) are instances of facts that tend to
introduce the fact in issue.
• The section also admits facts which explain the fact in
issue or relevant facts.
• Illustrations (d) and (e) show facts which explain the fact in
issue or relevant fact.
(ii) Facts which support or rebut an inference
suggested by a fact in issue or relevant fact

Facts which support or rebut the inference

suggested by the fact in issue or relevant fact are
relevant.
• Illustration (c) indicates fact facts that rebut the
inference made by the fact in issue.

(iii) Facts which establish the identity of

anything or person whose identity is relevant
• Identity may be thought of as a quality of a
person or thing, the quality of sameness with
another person or thing.
The provision deals with identification of (i)
persons, and (ii) things.
Identity of a person may also mean peculiar
features pertaining to him which distinguish
that person from others — height, his colour,
sound, clothes, identifiable marks on the
face, etc.
Similarly, identity of a thing may also
denote peculiar features pertaining to it —
its make, serial number, and other distinctive
marks.
Identity may be established in various ways and
some of these include: identifications by
photographs, identification parade,
identification by foot or boot notes [marks?],
identification by fingers, thumb or palm
impressions, identification by comparison of
hand writing, marks of blood, hair, or fibre of
clothes.
Identification parade is usually conducted by
the Police in cases where identification of the
accused by the victim of crime or other person
is important. The purpose of identification
parade is to confirm the evidence of a witness
who claims to have identified the accused
person.
The purpose of identification parade is
twofold.
First, it is to enable the witnesses to satisfy
themselves that the prisoner who they suspect is
really the one who was seen by them in
connection with the commission of the crime.
Secondly it is to satisfy the investigating
authorities that the suspect is the real person
whom the witness had seen in connection with
the occurrence.
NOTE: It is to be observed that evidence resulting
from an identification parade is only corroborative
but not substantive: Moses Charles Deo v
R.[1987]TLR 134.
The rules regarding the procedure of conducting
identification parades are not statutorily provided
although the CPA sanctions the Minister for
Justice to enact such rules. (See Section 62 of
CPA).
 The case of Rex v. Mwango Manaa (1936)3 EACA
29 has been severally cited by courts in Tanzania
as an authority for the procedure of conducting an
identification parade.
Police General Orders No 231 has also been
affirmed by the Court of Appeal in this regard.
Recently, the High Court reproduced the
provisions of the Police General Orders No 231
in R. v. XC- 7535 PC Venance Mbuta [2002] TLR 48.
See also: Tongeni Naata v R. [1991] TLR 54;
Raymond Francis v R. [1994] TLR 100.
In Hassan Juma Kanenyera and others v R.
[1992] TLR 100, the Court of Appeal
(Omar, Ramadhani, Mnzavas JJA) held that
identification parade is useless and
superfluous if the persons put on the parade
to be identified are known to the person who
is to make the identification.
Read the famous case of Waziri Amani v. R
[1980] TLR 250.
(iv) Facts which fix the time and place at which
any fact in issue or relevant fact happened
• Facts which tend to show a place or time at
which a certain event happened are admissible
under this provision.
• It is sometimes of the highest importance to fix
accurately the exact time of the occurrence of
the event, and a difference of even a few
minutes may be of vital importance. This is so
because accused persons often raise the defence
of alibi.
• Thus, facts like post-office marks, dates on
written letters, stamps on documents, may
assist the court to resolve disputes, etc. Medical
evidence is frequently used to resolve questions
on time.
• (v) Facts which show the relation of parties
by whom any fact in issue or relevant fact was
transacted
• Facts that establish the relation of the parties to
a dispute are admissible under this section. In a
case of administration of estates, for instance,
establishment of facts that the disputants are
brothers who are entitled to property, or that
they were the wives of a deceased man is vital.
• In a suit where a party wishes to dispute a
contract on account of lack of consent due to
vitiating factors like undue influence, facts of
their relationships becomes important.
 R. v. Mwango Manaa [1936] 18 EACA 29.
 Otieno and another v. R. [2006]1 EA 315.
 Mwabuja v. R. [2006]2 EA 229.
 Njiru and others v. R. [2002]1 EA 218.
 Kella and Another v. R. [1967] EA 809.
 Jackson s/o Mwakatoka & 2 Others v. R. [1990] TLR 17.
 Fadhili Gumbo @ Malota and three others v. R. [2006] TLR 50.
 Benson Kibaso Nyankoda @ Olembe Patroba Apiyo v. R. [1998]
TLR 40.
 Mangi v. R. [2006] 1 EA 162.
 Bhanbir s/o Versi and another v. R. [1969] HCD n. 243.
 Stanislasi @ Kanyambo c/o Kitambo v. R. [1942] 1 TLR 258.
 Joram Ntabova & Another v. R. [1980] TLR 282.
 Afrika Mwambogo v. R. [1984] TLR 240.
 Raymond Francis v. R. [1994] TLR 100.
 Shama and another v. Uganda [2002]2 EA 589.
 Eva Salingo and Others v. R. [1995] TLR 220.
 Olafu Wikechi v. R. [1995] TLR 185.
 Rajabu Khalifa and 3 Others v. R. [1994] TLR 129.
 Chambo Ramadhani v. R. [1985] TLR 178.
 Hassan Juma Kanenyera and Others v R. [1992] TLR 100.
 Waryoba Machage v. R. [1991] TLR 39.
 Mbushuu alias Dominic Mnyaroje and Another v. R. [1995] TLR 97.
 Wellington Thuku Paul Mugo and Another v. R. [1966] EA 124.
Section 12: Things said or done by conspirator
in reference to common design
This provision states as follows:
• 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 such persons referring to or
in execution or furtherance of their common
intention, after the time when such 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 for the purpose of proving the
existence of the conspiracy as for the purpose of
showing that any such person was a party to it.
 Illustration:
• Reasonable ground exists for believing that A has joined
in a conspiracy to wage war against the Government of
Tanzania. The facts that B procured arms in Europe for
the purpose of the conspiracy, C collected money in
Arusha for a like object, D persuaded persons to join the
conspiracy in Mwanza, E published writings advocating
the object in view at Dar es Salaam, and F transmitted
from Morogoro to G at Dodoma the money which C
had collected at Arusha, and the contents of a letter
written by H giving an account of the conspiracy, are
each relevant, both to prove the existence of the
conspiracy, and to prove A's complicity in it, although
he may have been ignorant of all of them, and although
the persons by whom they were done were strangers to
him, and although they may have taken place before he
joined the conspiracy or after he left it.
Principle
The above section is based on the “theory of
implied agency”. This section lays down that in
prosecutions for conspiracy when concert and
connexion between the persons charged have been
sufficiently established, the statements, acts or
declarations of each conspirator, in reference to
their common intention are admissible as evidence
against others.
The principle is substantially the same, as that,
which regulates the relation of agent and principal.
When various persons conspire to commit an
offence or actionable wrong (eg co-tort-feasor or
other tort-feasors) each makes the rest his agents to
carry the plan into action .
Scope
• This section has been interpreted as to admit
the following facts:
(i) Reasonable ground to believe in the
existence of a conspiracy must be shown as a
condition precedent to the admission as facts
and declarations of a conspirator against his
fellow conspirators;
(ii) The connection as each of the accused
with the conspiracy charged must then be
proved, i.e., that the persons charged were
parties to it;
(iii)The acts, declarations, and writings of
each conspirator in reference to the common
design or intention after the time when such
intention was entertained by any of the
persons are admissible against each other as
the others. And this is whether the acts were
done or the words were spoken in their
presence or absence, or before or after they
entered into the combination, both
• (a) for the purpose of proving the existence
of the conspiracy, as also as showing
• (b) the accused were parties to it.
“Common intention” signifies a common
intention existing at a time when the thing was
said, done or written by the one of them.

• Thus in R. v. Blake (1844)6 Q.B.126 it was

held that things done or said or written by a
conspirator after the conspiracy had been
carried into effect or abandoned and the
common intention was no longer operating,
ie, narrative of past acts done in the actual
course of carrying out the conspiracy, or
statement, or confession, is not admissible
against a co-conspirator.
Ongodia and Erima v Uganda [1967] EA 137.
The two appellants, who were captains in the
Uganda Army, were convicted by the General
Court-Martial Court on the charges of
conspiracy and improperly causing a false
alarm. On February 24, 1966, the two
appellants arrived at the Officers’ Mess at
Entebbe at about 2 pm. The first appellant
Ongadia, in the presence of second appellant
Erima, informed Anguram and Guweddeko in
the Mess that the war had broken out, that the
Army Headquarters at Mbuya had been
surrounded and they had managed to escape.
Ongodia asked Anguram if he had the
confidence in his platoon and on receiving an
affirmative reply, Ongondia asked Anguram to
take his platoon to Baitabibiri on the
Kampala/Entebbe Road to set up a road block
with the object of arresting the then Prime
Minister, Dr Obote. Ongodia added that other
troops were advancing from Kampala and they
would be arriving at any moment. Erima
remained silent throughout the conversation but
nodded his head from time to time. It was not
established at what precise moment of the
conversation he nodded his head.
• Held (Court-Martial Appeal Court)
(i) Evidence was sufficient to justify the
inference to justify the inference that the first
appellant Ongodia conspired with person or
persons unknown to arrange for the road block
to arrest the Prime Minister and the finding on
the first charge was confirmed.
(ii) evidence was insufficient to establish that
the second appellant was acting in concert
with the first appellant and a finding of not
guilty was substituted.
NOTE: this decision indicates that in order for
the accused persons to be said to have
conspired, it has to be proved that actually there
was agreement among them. In this particular
case, it was not sufficiently so established.

The Court of Appeal of Kenya held in Asira v. R.

[1986] KLR 227 that “Where a conspiracy is
reasonably believed to exist between two persons,
then under section 10 of the Evidence Act (Cap
80), the actions of one of them can be considered
against the other for the purpose of showing that
there was a conspiracy and that that other was a
party to it; but that aspect ceases to exist after the
conspiracy is not found to exist.”
READ:
 J.L.M. Brown and Others v. R. [1957] EA 371.
 R.v. Gokaldas Kanji Karia (1949) 16 EACA 116.
 Ongodia and Erima v Uganda [1967] EA 137.
 R.v. B.N. Patel and others [1957] E.A. 416 (K).
 Stanley Msinga and Others [1951] 18 EACA 211.
 R. v. Blake (1844)6 Q.B.126.
 Asira v. R. [1986] KLR 227.
Section 13: When facts not otherwise
relevant become relevant
This section provides as follows:
Facts not otherwise relevant are relevant–
(a) if they are inconsistent with any fact in issue
or relevant fact; or
(b) if by themselves or in connection with other
facts they make the existence or non-existence of
any fact in issue or relevant fact highly probable or
improbable.
 …
 Principle
As it was noted in the beginning of the course, the
object of leading evidence in a trial is to prove
(establish) an alleged fact or disprove the same. This
being the case, any fact which will tend to do either of
the two is relevant.
 Scope
Section 13 of TEA states the general theory of
relevancy and may be referred to as a residuary
provision dealing with relevancy of facts.
The section commences with the following wording,
“Facts not otherwise relevant are relevant”. It means that
facts which are not strictly legally relevant acquire
relevancy by virtue of their connection with the
existence or non existence of other facts and become
provable.
 Under this provision facts that may be proved are:

(i) facts which are inconsistent with the fact in issue or

relevant fact; and
(ii) facts which make existence or non existence of the fact
in issue highly probable or improbable. But facts of that that
must bear a reasonable proximity to the fact in issue. Facts
with some remote bearing cannot be proved as such would
negate the whole theory of relevancy. As once noted: one
of the object of the law of evidence is to restrict the
investigations made by the court within the bounds
prescribed by general convenience. Thus not everything
should be admissible into evidence.

 This provision, as said, is a “residuary section” for it

admits facts which would otherwise be “irrelevant”
under other provisions. It was feared that its wide scope
could disturb the whole theory of relevancy
Illustrations
(a) The question is whether A committed a crime
at Kigoma on a certain day. The fact that, on that
day, A was at Mtwara is relevant.
The fact that, near the time when the crime was
committed, A was at a distance from the place
where it was committed, which would render it
highly improbable, though not impossible, that he
committed it, is relevant.
(b) The question is, whether A committed a
crime. The circumstances are such that the crime
must have been committed either by A, B, C or
D. Every fact which shows that the crime could
have been committed by no one else and that it
was not committed by either B, C or D, is
relevant.
1. Inconsistent facts
• Inconsistent facts refer evidence that has no
connection with the fact in issue except by their
inconsistency which becomes the basis of their
admission. The usual logic of the argument is
that a certain fact cannot co-exist with another.
Illustration (a) demonstrates this argument.
The phrase “highly probable or improbable”
under subsection (2) is very important. It shows
the degree of probability or improbability that is
envisaged. It indicates the weight of evidence in
proving or disproving the fact is issue or relevant
fact.
The following are the common cases of facts
that may be inconsistent with the fact in issue:

 The absence of a person charged (alibi),

 The absence of the husband when the child was

begotten (Non Access),

 Survival of the alleged deceased person after

supposed time of death,

 The commission of a crime by a third person,

 Self-infliction of the harm alleged.

 Alibi
Alibi is a Latin term which means “elsewhere”. It is a
plea by the accused person that during the commission
of the offence he was nowhere near the place where the
crime was committed. The facts that a person alleged
to have committed a crime was elsewhere at the time
when the crime was committed are inconsistent with
the fact in issue.
If proved sufficiently alibi is no doubt a sufficient
answer to a charge but the experience has shown that it
is usually for the accused to prove it. Firstly, it is very
difficult for the accused to prove such defence by
independent evidence.51 Secondly, it is difficult for the
accused to be believed by the court for such evidence is
normally regarded with suspicion as a concoction
 ….
The evidentiary value of alibi evidence is
strengthened if the alibi is set up at the
earliest. This is reflected in the law of
criminal procedure. Section 194 (4) ─ (6) of
the Criminal Procedure Act, [Cap 20 RE 2002]
addresses the procedure to be followed when
an accused wishes to rely on an alibi and a
notice thereof is necessary.
Similarly, under section 89 of the Criminal
Procedure Act, 2004 (Zanzibar) a person who
wishes to rely on the defence of alibi must
give notice to the court and prosecution
before hearing of the case.
It is the duty of prosecution to disprove the
defence of alibi set up by the accused. It was so
held the High Court of Uganda in Sakitoleko v
Uganda [1967] E.A. 531 that:
“It is a wrong statement of the law that the
burden of proving an alibi lies on the prisoner. It
is the duty of a Criminal Court to direct its mind
properly to any alibi set up by a prisoner; and, it is
only when the court comes to the conclusion that
the alibi is unsound that it would be entitled to
reject it. As a general rule of law, the burden of
proving the guilt of a prisoner beyond reasonable
doubt never shifts whether the defence set up is an
alibi or something else. That burden always rests
on the prosecution."
See also: Semande v. Uganda [1999]1 EA 321
 No Access
If the facts are that a certain person had no access
at all to do a certain thing then such facts are
highly inconsistent with the fact in issue. If, for
instance, there is a dispute of paternity between A
(husband) and B (wife) over a child, and A states
that at the time when B conceived he was
studying in Europe, then such facts are
inconsistent to the fact issue. They make the fact
in issue that A sired the child highly improbable.

 Survival of the alleged deceased

If a person is charged with a crime of, for
instance, murder on a certain date, the fact that
the alleged deceased was seen alive after that date
makes the fact in issue highly improbable.
 Commission of a crime by third person
If A is charged with robbery of B on a certain date and time, but C
confesses to have robbed B on the same date and time, such evidence
would be inconsistent with the fact in issue.

 Self-inflicted harm
If a person is tried for murder of a certain person but later on found that
person had, for instance, taken poison the fact which is inconsistent
with the fact in issue.

One author tells a story of a young girl who was accused of committing
theft. Her father was very enraged and a result he beat her severely.
Subsequently, the girl died. The father and all persons believed the
death was on account of injuries of the beatings. The father made a
confession to the effect that he killed her daughter. Later, the post-
mortem report showed that there were several stripes of beatings on the
body but the beatings on the body were not the cause of death. The girl
died due to poison which she had consumed.
• B. Facts showing probabilities

Sometimes it is not easy to prove all facts in

issue by direct evidence. Thus, courts
sometimes rely on probabilities. This provision
thus admits facts which are not relevant but
become relevant when they make a fact in
issue or relevant fact highly probable or
improbable.
Cases to Read:
• Raja v. Kaataria [1965] E.A. 362 (U).
• M'bui v. Dyer [1967] E.A. 315 (K).
• Muwanga v. Jiwani [1964] E.A. 171 (U).
• R. v. Parbhudas (1874)11 BH CR 90.

On Alibi, read:
• Rashid Ally v. R. [1987] TLR 97.
• Godson Hemed v. R. [1993] TLR 241.
• Peter Matengo and Four Others v. R. [1994] TLR 112.
• Ali Salehe Msutu v R. [1980] TLR 1.
• Lusabanya Siyantemi v. R. [1980] TLR 275.
• Kibale v. Uganda [1999]1 EA 148
Section 14: Facts that enable the court to
determine amount of damages are relevant
This provision provides:
• 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.
• Damages denote compensation or
indemnity for a loss suffered by a person
following a tort or a breach of contract or
breach of statutory duty.
 Section 14 admits into evidence any fact that
assists the court in the course of determining the
amount (quantum) of damages which the court
ought to award in a civil case. In such cases,
damages are pleaded as pecuniary compensation
for the loss suffered on account of let’s say breach
of contract/ promise, reputation or enjoyment of
property.

 Principle

In suits in which damages are claimed, the amount

of damages is a fact in issue which has to be
resolved by evidence.
 Scope
This provision applies in civil proceedings where
damages are claimed and the court is confronted
with an issue of “what amount or quantum of
damages is to be awarded to the plaintiff ”? Such an
issue rises at the end of proceedings when a case
against has been established against the Defendant
and now the court seeks to measure the amount or
quantum of such damages.
Thus, in Saidi Kibwana and General Tyre E.A. Ltd v
Rose Jumbe [1993] TLR 175, the Court of Appeal
held that in assessing damages in a case where a
person is negligently killed by a car, the court needs
to consider loss of future earnings; pain and
suffering, and loss of expectation of life.
 Some decided cases
In Raja v. Kataria and another [1965] EA 362, the Plaintiff ’s
husband had been negligently killed by a lorry following a
collision. The Plaintiff sued the Defendant for negligence for
herself and her children.

In assisting the court to award the correct amount of damages

the following facts were adduced: the salary of the deceased;
his age before the death; his sound health which could enable
him to live about 15 years thereafter; the number of his
defendants and costs incurred during his funeral.
Read:

1. Attorney General v Roseleen Kombe (as Administratrix of the late

Lt. Gen. Imran Hussein Kombe) [2005] TLR 208.
2. Permanent Secretary (Establishments) and another v Hilal Hamed
Rashid and 4 others [2005] TLR 121.
Section 15: Facts affecting existence of right
or custom .
• This provision provides thus,
Where the existence of any right or custom is in
question, the following facts are relevant–
(a) any transaction by which the right or custom in
question was created, claimed, modified, recognised,
asserted or denied, or which was inconsistent with its
existence;
(b) particular instances in which the right or custom
was claimed, recognised or exercised, or in which its
exercise was disputed, asserted or departed from.
Illustration:
• The question is whether A has a right to a
fishery. A deed conferring the fishery on A's
ancestors, a mortgage of the fishery by A's
father, a subsequent grant of the fishery by
A's father, irreconcilable with the mortgage,
particular instances in which A's father
exercised the right, or in which the exercise
of the right was stopped by A's neighbours,
are relevant facts.
Principle
This provision applies to cases that relate
possession and especially the possession of real
rights, whether incorporeal, ancient water course,
corporeal as a field, or road strip. In such cases,
every act of enjoyment or possession is a relevant
act, since the right claimed is constituted by an
indefinite number of acts of user-exercised animo
domini (intention to own or possess).

Ownership may be proved by proof of

possession; and that can be shown by particular
acts of enjoyment, these acts being the fractions
of that sum total or enjoyment which
characterises dominium (ownership).
Scope
• According to this section whenever there is a
question as to the existence of any (1) right or
(2) custom, the following facts would be
admissible:
(1) Transaction, by which the right or custom in
question was created, claimed, modified, recognised,
asserted or denied, or which was inconsistent with its
existence, and
(2) Particular instances in which the right or custom
was claimed, recognised or exercised, or in which its
exercise was disputed, asserted or departed from.
Right: the initial view was that the meaning of
the word “right”as used in section 15 meant
public and incorporeal rights58, such as right to
ferries, right to roads, right to fisheries, etc.
 However, a different view has been taken by
Indian courts recently that the word “right” as
used in that provision is not confined to public
and incorporeal rights but it includes private
and other rights of ownership known to law.
There is no single case which has attempted to
interpret this provision so far in Tanzania.
Custom:
A custom is used in the sense of a rule, which,
in a particular district, community, class or
family, has, from long usage, obtained the
force of law.
There are different conditions which have been
associated with the acceptability of custom in
law. Custom must be: ancient, continued,
unaltered or uninterrupted, uniform, constant,
peaceable and acquiesced in, reasonable,
certain, compulsory but not optional, or
immoral.
 Kinds:

(i) Private (only governing a particular clan or family:

e.g. as to the estate of a deceased member of that
family),

(b) General (those which govern a considerable number

of classes of persons, and may include trade customs-
i.e., those customs that govern certain kind of trades-
e.g. A bag of cement is by custom weighing 50 kgs. )
( See, for instance, Section 50 of TEA) or Public
Customs , (governing members of the public).
Case Law on custom; Read:
• Isidori Ndethinga v. Eugen Mangalili [1969] HCD
n.186.
 Section 16: Facts showing existence of state of mind,
or of body, of bodily feeling
This section states as follows:
(1) 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.
(2) A fact relevant within the meaning of subsection (1) 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.
(3) 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 subsection (1), the previous conviction
of such person shall also be a relevant fact.
 Illustrations:
(a) 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 of which he was in possession to be
stolen.
(b) A is accused of fraudulently delivering to another
person a counterfeit coin which, at the time when he
delivered it, he knew to be counterfeit.
The fact that, at the time of its delivery, A was
possessed of a number of other pieces of counterfeit
coin 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.
(c) A sues B for damage done by a dog of B's which B 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.
(d) The question is whether A, the acceptor of a bill of
exchange, knew that the name of a payee was fictitious. The fact
that A had accepted other bills drawn in the same manner before
they could have been transmitted to him by the payee if the
payee had been a real person, is relevant, as showing that A
knew that the payee was a fictitious person.
(e) A is accused of defaming B by publishing an imputation
intended to harm the reputation of B.
The fact of previous publications by A respecting B, showing ill-
will on the part of A towards B is relevant, as proving A's
intention to harm B's reputation by the particular publication in
question. The facts that there was no previous quarrel between
A and B, and that A repeated the matter complained of as he
heard it, are relevant, as showing that A did not intend to harm
the reputation of B.
(f) A is sued by B for fraudulently representing to B
that C was solvent, whereby B, being induced to trust
C, who was insolvent, suffered loss.
The fact that, at the time when A represented C to be
solvent, C was supposed to be solvent by his
neighbours and by persons dealing with him, is
relevant, as showing that A made the representation in
good faith.
(g) A is sued by B for the price of work done by B,
upon a house of which A is owner, by the order of C, a
contractor. A's defence is that B's contract was with C.
The fact that A paid C for the work in question is
relevant, as proving that A did, in good faith, make
over to C the management of the work in question, so
that C was in a position to contract with B on C's own
account, and not as agent for A.
(h) A is accused of the dishonest misappropriation of
property which he had found, and the question is whether,
when he appropriated it, he believed in good faith that the
real owner could not be found.
The fact that public notice of the loss of the property had
been given in the place where A was, is relevant, as showing
that A did not in good faith believe that the real owner of
the property could not be found. The fact that A knew, or
had reason to believe, that the notice was given fraudulently
by C, who had heard of the loss of the property and wished
to set up a false claim to it, is relevant, as showing that the
fact that A knew of the notice did not disprove A's good
faith. (i) A is charged with shooting at B with intent to kill
him, In order to show A's intent the fact of A's having
previously shot at B may be proved.

(j) A is charged with sending threatening letters to B.

Threatening letters previously sent by A to B may be
proved, as showing the intention of the letters.
k) The question is, whether A has been guilty of cruelty towards B,
his wife. Expressions of their feeling towards each other shortly
before or after the alleged cruelty are relevant facts.

(l) The question is whether A's death was caused by poison.

Statementsmade by A during his illness as to his symptoms are
relevant facts.

(m) The question is, what was the state of A's health at the time
when an assurance on his life was effected. Statements made by A
as to the state of his health at or near the time in question are
relevant facts.

(n) A sues B for negligence in providing him with a carriage for hire
not reasonably fit for use, whereby A was injured. The fact that B's
attention was drawn on other occasions to the defect of that
particular carriage is relevant. The fact that B was habitually
negligent about the carriages which he let to hire is irrelevant.
 Principle
If the existence of a mental or bodily state or bodily
feeling, as is assumed by the section, in issue or
relevant, it is clear that facts from which the existence
such mental or bodily state or bodily feeling may be
inferred are also relevant Subsection (2) of section 16
rejects general facts on the ground that the collateral
matter is too remote, if indeed it is connected with the
factum probandum. This provision thus admits both
physical and psychological facts.

 Scope
Section 16 admits two sorts of facts showing the
existence of any:
(i) state of mind, and
(ii) state of body or bodily feeling.
Some decided cases in relation to section 16
• John Makindi v. R. [1961] EA 327
In this case, it was partly established in
evidence that the appellant had told the
deceased, “As you made me to be imprisoned,
I will beat you until you die.” This was held to
be admissible under sections 8 and 14 of IEA
1872 (ss 10 and 16 of the EA) as showing the
motive in the appellant for revenge on the
deceased and appellant’s ill–will towards him.
Tundugwa v. Coffee Marketing Board (1974) ALR
(Commercial) 354
• This is a Ugandan case. The plaintiff brought
an action against the defendant to recover
damages for personal injuries sustained in the
course of his duties as the defendant’s
employee and caused by the defendant’s
negligence. The plaintiff and other workmen
were doing a work which included moving
sacks of coffee beans. The sacks which were to
be moved were standing in low stacks or lying
scattered on the floor of the store. Near the
place to which sacks were being moved, other
sacks, which the workmen were instructed not
to touch, were standing in a high stack
Some of the sacks in the high stack fell on the plaintiff
thereby injuring him. There was no evidence that anybody
touched the high stack of sacks before it fell. The plaintiff
alleged that sacks in the high stack had fallen on a previous
occasion injuring another workman and this evidence was
not contradicted. The plaintiff contended that the defendant
was negligent.
Held (Nyamchoncho, J.):
• The doctrine of res ipsa loquitur is applied, and in the
absence of any explanation of why the stacks fell, that
the defendant’s negligence was the cause. The court
observed that the defendant’s failure to deny the
allegation that the sacks had fallen on a previous
occasion was further ground on which the defendant
could be found guilty of negligence.
 Compare the underlined statements with illustrations (c)
and (d) above.
• R. v. Francis (1874) 12 Cox 612 at 616
In this old English case, the prisoner was
indicted for endeavouring to obtain an
advance from a pawn-broker upon a ring by
false pretence that it was diamond ring.
Evidence was held to have been properly
admitted to show that two days before the
transaction in question, the prisoner had
obtained an advance from a pawn-broker upon
a chain which he represented to be a gold
chain, but which was not so.
• Compare this case with illustrations (a)
and (b).
 Section 17: Facts bearing on the question whether act
was accidental or intentional
Section 17 states that:
When there is a question 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 .

 Illustrations:
(a) A is accused of burning down his house in order to
obtain money for which it is insured.

The facts that A lived in several houses successively each of

which he insured, in each of which a fire occurred, and
after each of which fires A received payment from a
different insurance office, are relevant, as tending to show
that the fires were not accidental.
(b) A is employed to receive money from the debtors of B.
It is A's duty to make entries in a book showing the
amounts received by him. He makes an entry showing
that on a particular occasion he received less than he
really did receive. The question is, whether this false entry was
accidental or intentional.
• The facts that other entries made by A in the same
book are false, and that the false entry is in each case in
favour of A, are relevant.

(c) A is accused of fraudulently delivering to B a counterfeit

coin.
• The question is, whether the delivery of the coin was
accidental. The facts that, soon before or soon after the
delivery to B, A delivered counterfeit coins to C, D and
E are relevant, as showing that the delivery to B was
not accidental.
 ….
Principle
• This section admits evidence which is
known as “evidence of similar facts.” The
principle on which evidence of similar acts
is admissible is, not to show, because the
accused has already committed some crimes,
he would therefore, be likely to commit
another, but to establish the animus of the
act, for which he is charged and rebut by
anticipation, the defence of ignorance,
accident, mistake, or innocent state of mind.
• This section is an application of the rule laid
down in the preceding section (section 16).
• In Boardman v. DPP [1974] 3 All ER 887 at 897, Lord Wilberforce
stated the principle on which similar fact evidence is admitted in these
terms:
“The basic principle must be that the admission of similar fact evidence (of
the kind now in question) is exceptional and requires a strong degree of
probative force. This probative force is derived from, if at all, from the
circumstance that the facts testified to by the several witnesses bear to each
of other such a striking similarity that they must, when judged by
experience and common sense, either all be true, or have arisen from a
cause common to the witnesses or from pure coincidence. …
I use the words “a cause common to the witnesses” to include not only (as
in R v Sims [1946]1 All ER 697; [1946] KB 531) the possibility that the
witnesses may have invented a story in concert but also that a similar story
may have arisen by a process of infection from media publicity or simply
from fashion. In the sexual field, and in others, this may be a real
possibility; something much more than mere similarity and absence of
proved conspiracy is needed if this evidence is to be allowed. This is well
illustrated by Kilbourne’s case [1973] 1 All ER 440; [1973] AC 729 where
the judge excluded “intra-group” evidence because of the possibility as it
appeared to him, of collaboration between boys who knew each other
well. This is, in my respectful opinion, the right course rather than to admit
the evidence unless a case of collaboration or concoction is made out.”
 Scope
Like section 16, this section also deals with a state of
mind but unlike section 16, which is a bit wider, section
17 is narrow. It admits facts which solve the question
whether a certain act was intentional or accidental. It
admits similar facts which are, in most cases, used to
rebut the defence of accident, mistake, ignorance, etc.
When an act is repeated again and again, the chance of
it being accidental is reduced.
Thus, for facts to be admitted under provision it must
be shown that,

(i) there was a question whether an act was intentional

or accidental, and

(ii) it must be proved that the particular act forms part

of the series of similar occurrences.
• Intention and accident
Intention in the context of criminal law is a state of
mind of one who aims to bring about a particular
consequence.64 An accident is an event that occurs
without human design. In Fenton v Thorley [1903]
A.C. 443, it was held that “the word accident
denotes or includes any unexpected personal injury
… from any unlooked-for mishap or occurrence”.
As said, this section 17 admits facts that “form part
of a series of similar occurrences.” Such facts are
provable when the issue whether an act was
“intentional or accidental.” This was partly
discussed in the English case of R. v. Harrison-Owen
[1951] 2 All ER 726.
• In this case, the appellant was a man of bad
character, with many convictions of larceny,
housebreaking, and like offences. He was found in a
house holding a bag which belonged to the mistress
of house which she had left out in a car. In that car
there was a key to the house. The appellant used the
same key to let himself inside the house. On being
discovered, he told some cock and bull story that he
was looking for lodgings. On his trial for burglary he
gave evidence that he had no recollection of entering
the house and must have done so in a state of
automatism. The judge then directed the Counsel in
these words, “I direct here that, in view of this
defence that has been raised— that there was no
intention in the act from the start to finish, and that
his presence in the house was purely accidental —
you can put the whole of his man’s history to him.”
On appeal it was held (Lord Goddard CJ):
“If I may say so with all respect to the judge,
he confused intention and accident.” The
question was not whether the act was
intentional or accidental but whether it was
voluntary or involuntary (automatism). In the
circumstance it was not permissible to cross-
examine the appellant as to his previous
convictions.
 How sections 16 and 17 differ?
As it was said section 17 deals with facts bearing the
question whether an act was intentional or accidental.
By inquiring whether an act was “intentional” indicates
that this section deals with a state of mind just like
section 16. The ensuing question is how do these two
sections differ?

 Under section 16 all facts that establish state of

mind or body or bodily feeling are admissible, whereas
under section 17 it is only one species of state of mind,
namely intention, which is allowed to be proved.

 Facts relating to the state of body or bodily feeling

are provable under section 16 but not under section 17.
• CASES:\
Stanislasi @ Kanyambo s/o Kitambo v. Rex
(1942) TLR (R) 258.

Nurat- Amin v. Emperor, AIR 1939 Cal. 335.

Perkins v. Jaffrey (1915) 2 KB 702.

Makin v. Attorney General for New South Wales

[1894] AC 57.
 Section 18: Relevancy of the existence of course of
business
Section 18 provides thus,
When there is a question whether a particular act was done, the
existence of any course of business, according to which it naturally
would have been done, is a relevant fact.
• Illustrations:
(a) The question is, whether a particular letter was
dispatched.
The facts that it was the ordinary course of business for all
letters put in a certain place to be carried to the post, and
that particular letter was put in that place are relevant.
• (b) The question is, whether a particular letter reached A.
The facts that it was posted in due course, and was not
returned through the Dead Letter Office, are relevant.