Evidence Law in the Ugandan Jurisdiction

Under s. 4 of the Uganda Evidence Act, 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 declared to be relevant. C.D. Field has defined burden of proof as a metaphorical phrase indicating an obligation to prove a fact or facts. This obligation necessarily involves the adduction of evidence in an attempt to prove a fact, subject to occasional cases where a fact can be established without evidence.

Towards the end of the Nineteenth Century, Thayer maintained that the “words burden of proof” were used in two senses and that there was only one phrase for two ideas. One idea was the duty of him who will lose the case if he does not make out a proposition, and the other was the duty of going forward in argument or in producing evidence. Wigmore on the other hand while elaborating Thayer’s thesis treated the two meanings of burden of proof as involving two separate burdens. One burden was that of convincing the jury at the end of the trial and the other was that of making out a prima facie case.

It is provided in section 101(1) of the Uganda Evidence Act that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. Subsection (2) provides that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

This can be illustrated as below: (a)A desires a court to give judgment that B shall be punished for a crime which A says that B committed. A must prove that B committed the crime. (b)A desires court to give judgment that he is entitled to a certain landing the possession of B, by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts.

The obligation to adduce evidence is not backed by any direct sanction for the penalty for failure to fulfil the duty or to discharge the burden, is the risk of failure in the whole or a part of the litigation. According to s. 102 of the Uganda Evidence Act, it is provided that the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side.

DOCUMENTARY EVIDENCE

The Study of documentary evidence involves the principles or rules which govern admission of documents in evidence. These are provided for from sections 60 to 100 of the Evidence Act Cap.6 and are divided into five sections. i)Classification of documents

ii)Proof of execution of a document or genuineness of a document. iii)The rules of proving the contents of a document iv)Presumptions relating to documents. v)Admissibility of extrinsic evidence to prove contents of a document or the parole evidence rule and its exceptions.

What is a document? S.2 (1) (b) of the Evidence Act defines a document to mean any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used or which may be used for the purpose of recording that matter.

Documentary evidence is any evidence introduced at a trial in the form of documents. Although this term is most widely understood to mean writings on paper (such as an invoice, a contract or a will), the term actually includes any media by which information can be preserved. Photographs, tape recordings, films, and printed emails are all forms of documentary evidence.

Documentary evidence is defined under the Uganda Evidence Act to mean documents produced for the inspection of the court.

Under s.3(1) of the Tanzania Evidence Act a document is defined as any writing, Photostat and every recording upon a tangible thing, any form of communication or representation by one of those means which may be used for the purpose of recording any matter provided that such recording is reasonably permanent and readable by sight.

Suffice it to say that under the Law of Evidence, a document means more than its ordinary English meaning and has been held to include sign posts, tombstones, photos, e.t.c. It also includes tape recording which may not fall under any of the definitions. The admissibility of tape recording was first considered in R v Maqsud Ali. A murder had been communicated and the two appellants voluntarily entered a room with a Police Superintendent and a Pakistani Liaison Officer. A microphone was installed in the room and connected to a Tape Recorder in another room.

The recorder was switched on and the Superitendant and the Liaison Officer left. While the appellants were alone, they conversed in a Punjabi dialect and their conversation almost amounted to a full confession to the murder. The tape was kept in Police Custody but not all the appellants said it was clear as the recording contained several street voices. It was also not easy to prepare the transcripts and translations of the words on the tape because the words had to first be translated into Urdu which is the Official language of Pakistan.

At the trial, one of the issues was whether the tape recording and the transcript translations should have been admitted in evidence. Court held that evidence of a tape recording was in the circumstances admissible the trial judge having properly warned the jury of the caution with which they should consider the translations. That the translations were properly admitted despite the difficulties of language and that the recorder was in substance a mechanical eavesdropper and the judge had rightly exercised his discretion by not excluding the evidence of the tape and the translations. The case laid down the following principles of law namely:

i)Tape recording is admissible in evidence provided the accuracy of the recording can be proved and the voices recorded can be properly identified and that the evidence is relevant and otherwise admissible. That such evidence should always be regarded with some caution and should be assessed in light of all the circumstances of the case. ii)Court also said that there can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged. Marshall J said that:

“…we must not be taken as saying that such recordings are admissible whatever the circumstances but it does appear to this court wrong to deny the law of evidence advantages to be gained by new techniques and devices provided the accuracy of the recording can be proved and the voices recorded properly identified, provided also that the evidence is relevant and otherwise admissible we are satisfied that tape recording is admissible in evidence.”

This was followed in Salau Dean v Republic. The appellant was convicted of corruption and giving false information by a person employed in the public service. The Police were informed by the appellant that a certain Immigration Officer had asked him for ₤50 to refrain from prosecuting a friend of his under the Immigration Act and a Police Trap was laid. When the appellant met the Immigration Officer, he had a long conversation with him which was tape recorded by various devices but when the trap was closed, the appellant and the immigration Officer were facing each other and the latter was in possession of money given to the former by the Police.

This conversation was recorded in Punjabi and translated to English. The Immigration Officer consistently asserted that the money had been thrust into his pocket by the appellant after prolonged and unsuccessful efforts to persuade him to accept it as a bribe. After hearing and before Judgment, the magistrate had the tape played over in his chambers’ privacy but in the absence of the appellant or his counsel. The Magistrate was interested in two words which could mean either “keep it” or “take it”. The magistrate held that the words could only mean “take it”.

The first issue was whether the tapes were properly admitted by the court and it was held that the tape recordings were properly admitted on the authority of R v Maqsud Ali where admissibility of tape recordings in court first arose as an issue. Secondly, on whether the subsequent playing of the tapes were properly done, the court held that the opinion of the interpreter on a subsequent playing of the tape recording was adverse to the case of the appellant and his advocate and in accepting it the magistrate committed a fundamental error depriving the appellant not only of semblance but of the absence of a fair trial.

Uganda v Evaristo Nyanzi held tape recordings to be admissible as documents.

CLASSIFICATION OF DOCUMENTS The classification is important because it determines the method by which the particular document might be proved. There are three main types of classification: 1. Attested Documents as opposed to Unattested Documents:

To attest a document means to witness the signing or execution of the document. Certain documents are required in Law to be attested e.g. Powers of Attorney, Wills, Transfer Deeds under the Registration of Titles Act. Only documents that require attestation should be presented as attested. Unattested documents are those which are not by law to be witnessed in order to be valid.

2. Private as opposed to Public Documents A Public Document is one issued officially by a government or one evidencing the act of a government. S.72 of the Uganda Evidence Act provides a list of what constitutes public documents under the law of Evidence namely: a) Documents forming acts or records of acts of the following: 1. of sovereign authority.

2. of Official bodies and tribunals 3. of Public officers, legislative, judicial and executive whether of Uganda or of any other part of the commonwealth or the Republic of Ireland or of any foreign Country. b) Public records kept in Uganda of private documents

A private document becomes a public document by registration in a public office. In Kafeero v Turyagyenda , it was held that omission to register does not affect Validity of a document.

The Registration of Documents Act Cap. 81 provides for the registration of individual groups. Registration of a document eases proof of such document since it will be presumed and it is also for safe custody. This provision however for registration of private documents is not mandatory. This was discussed in the case of Kafeero v Turyagyenda.

One of the parties wished to rely on a partnership deed which at first was not registered but was registered after a long lapse of time from when the partnership was said to have began. One issue was whether the Partnership deed could be allowed in evidence considering the time of registration. Court held that the registration or non registration of a document has no bearing on its validity or invalidity. That S.14 of the Registration of Documents Act does not provide any time within which a document must be registered nor does it put any compulsion on any body to register a document. Court also said that registration can be done at any time at the option of the parties.

In Khalid Walisimbi v Jamil Kaaya, it was held that letters of administration is a public document and presumed genuine under s.77 of the Evidence Act.

S.74 deals with private documents. It provides that all documents other than those specified in s.73 are private documents. Tootal Bodhurst Co. v Ahmed considered the issue of private documents against public ones. It was held that a certificate of registration of trademarks issued by an English registry was a public document.

The significance of various types of classification centres around the rules governing the admissibility of certain documents in evidence. For instance, with a public document, one may tender a certified copy thereof and a court will act upon it whereas with a private document, the court may insist on the best Evidence Rule and that will mean production of the original itself.

3. Primary and Secondary Documents/ Evidence These are covered under ss.60-65 of the Evidence Act. S.60 provides that the contents of documents may be proved by either primary or secondary evidence. Under s.61, Primary Evidence is defined to mean the document itself produced for inspection of a court. In other words, primary evidence is the original document itself. The section gives a number of explanations on how to distinguish primary from secondary evidence.

1.Where the document is executed in several parts, each part is primary evidence of the document. Where the document is executed by any one or some parties only, each counterpart is primary evidence as against the parties executing it. 2.Where a number of documents are all made by one uniform process, e.g in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original. This was considered in DPP V Nathan.

Nathan had been accused and convicted of fraud. He was a proprietor of a travel agency with two branches one in Zanzibar and the other in Dar-es-salaam. The former was duly approved by the International Air Transport Association, appeared on the official Agency List of the IATA and it was duly authorized to issue International Air Tickets whereas the latter was not so approved nor listed and was therefore not competent to issue tickets.

The respondent had been licensed to sell tickets for the East African Airways in Zanzibar but he was alleged to have forged a ticket in Tanzania where he had no licence to sell with intent to deceive. The evidence adduced against him consisted of an IATA official agency list which listed all agents selling air tickets in Africa.

It was adduced to prove that the respondent had no authority to sell tickets in Tanzania and that therefore he did so fraudulently. He challenged the production of this list as secondary evidence and not primary evidence and that therefore it should not have been admitted in court. Court held that the loose-leaf cyclostyled volume was apparently produced by a process capable of making many other documents uniform with the leaves of the volume produced in evidence. Consequently it was admissible as an original under s.62 of the Indian Evidence Act. {=s.60 UEA}.

Secondary Evidence is defined by s.62 of the Evidence Act which provides that Secondary Evidence means and includes: a)certified copies i.e. copies of the original which have been certified by a competent authority. b)Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies. c)Copies made from or compared with the original.

d)Counterparts of documents against parties who did not sign them e)Oral accounts of contents of a document given by a person who has seen the document.

PROOF OF EXECUTION OF DOCUMENTS The general rule is that documents must be proved by primary evidence. This is stated in section 63 of the Evidence Act but the section makes allowance for exceptions as shown in the Evidence Act. The aspect of proof of execution of a document is important because before a document is admitted is admitted in evidence it must be proved to the court to be genuine i.e. it must be shown that it was duly executed by the person or persons who appear on the face of the document as signatories.

The principle was laid down in very eloquent terms in Stamper v Griffen (1856) 20 Ed. 320 The court said hat no writing can be received in evidence as a genuine writing until it has been proved to be a genuine writing and none as a forgery until it has been proved to be a forgery. That a writing of itself is not evidence of one thing or the other and therefore is not, unless accompanied by proof of some sort, admissible as evidence.

How can Genuineness of a document be proved to court? Each category of documents is proved in its own way. A.Public Documents This can be proved in a number of ways: A. Public document This can be proved in a number of ways. Under s.77 categories of Public Documents and how they can be proved is provided. Under s. 78, a public document can be proved by producing a certified copy thereof. The section sets a presumption that every certified copy of a public shall be presumed to be genuine. Uganda v Mukasa Deogratius

Under s.76, certified copies may be produced in proof of the contents of public documents of which they purport to be copies. Under s. 75, every person has a right to inspect any public document and get certified copies thereof if they so desire and every public Officer under whose custody a public document may be has a duty upon request to give copies and to certify them but the duty to certify and the right to get copies is dependent on the legal fees that may be charged and is not absolute. B. Private documents Required by Law to be Attested

According to s.57, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purposes of proving its execution if there is an attesting witness who is alive and is subject to court process and who is capable of giving evidence. There are however exceptions:

1. Under s. 68 in case no attesting witness can be found, it must be proved that the attestation of at least one witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. Proof of handwriting can be done by calling a handwriting expert. See: Gatheru v R

Under s. 45, a person who is acquainted with the handwriting of a person who is alleged to have executed a document can give evidence thereof.

In Gatheru’s case, the court said that an expert need not have acquired his skill academically but it also includes skill acquired through practical experience. With regard to admission of handwriting, cases include:

Salum v Republic The appellant was charged with forgery, uttering a false document, a forged document and stealing. It was alleged that he had forged a postal receipt, uttered it to a post office clerk thereby obtaining a letter and stealing its contents. The only evidence against the appellant was that of opportunity to commit the offences and evidence of a handwriting expert who stated that he had compared the signature on the postal receipt with a letter written by the appellant and specimens of the handwriting of the appellant and two other messengers in the same employment as the appellant and he had come to the conclusion that the signature on the receipt and letter were written by the same person who was the appellant. On appeal from his conviction it was held that care should always be taken not to give an expert’s evidence too much weight.

That it is not possible to definitely say that any body wrote a particular thing. That all one can do is to point out the similarities and draw conclusions there from. This is the manner in which expert evidence in matters of this kind ought to be presented to court. That then the court has top make up its mind with such assistance as can be furnished to it by those who have made a study of such matters where particular writing is to be assigned to a particular person.

Court also said that a handwriting expert is not a person who tells you that this is the handwriting of such and such a person but he is a person who, harbitrated to the examination of handwriting, practiced the task of making minute examination of handwriting, directs the attention of others to things which he suggests are similarities and that are no more than its legitimate province.

Walusimbi v Standard Bank The plaintiff maintained a current account with the defendant. He had been issued with a chequebook consisting of 25 leaves. He issued 10 of them and they were honoured by the defendant. The plaintiff’s account was duly debited. Another chequebook, also consisting of 25 leaves, was issued by the defendant. 14 leaves were issued as cheques and they were honoured by the defendant by debiting the plaintiff’s account.

The plaintiff received two statements of accounts on which he discovered a number of debit entries supported by the 14 cheques purporting to have been signed by him. He stated that he was given a chequebook which he was still using, displayed it in court and stated that he never requisitioned for another chequebook. He brought this suit to recover this money and general damages for loss of account and interest against the defendant.

On the issue of genuineness of the cheques, court held that the procedure to be followed in submitting a questioned document for the examination of an expert is that if the questioned writing cannot be distinguished by other considerations other than in the writing itself, it is always advisable it with the genuine writings without any information as to which document, paper or writing is suspected and in whatever way the question is presented until an opinion has been rendered by the expert.

2.S.69 provides that an admission of a party to an attested document that he has executed it is sufficient proof of his execution against him even if the document is required by law to be attested.

Pope V Rep It was held that since the evidence that the document alleged to be in the appellant’s handwriting had not been challenged and the appellant had also tacitly admitted the fact, there had been no failure adequately to direct the jury thereon. The appellant had been charged with fraudulent false accounting by paying staff pay sheets to fictitious persons and the signature thereon was his which he admitted.

3.By way of estoppel, if a party to proceedings has by prior conduct relied upon or represented that a document is genuine, then there may be no need to call an attesting witness because the doctrine of estoppel stops him from denying its genuineness.

4. S.90 – THE 30 YEAR OLD RULE- The section creates a presumption that documents which are thirty years or more and which have been kept in proper custody shall be presumed to be genuine and that in case of an attested document it shall be presumed that the document was duly executed and attested by the persons appearing to be executors and attesters. A document will be said to be in proper custody if it is in a place in which and under the care of a person of whom they would naturally be. The section goes on to say that no custody will be considered improper if it is proved to have had a legitimate origin or if the circumstances of a particular case are such as to render such an origin probable.

5. S. 70 provides that if an attesting witness denies or does not recollect the execution of the document then other evidence may be called to prove its execution. This is regarded as a last resort option.

C. Unattested Documents With regard to unattested documents, these can be proved under s. 65 which provides that a document alleged to be signed or to have been written by any person under whose signature or in whose handwriting it is alleged to be must be proved to be in his or her handwriting.

Under s.71, an attested document which is not required by law to be attested may be proved as if it was an attested. S.72 (1) provides court with powers or authority to compel any person to write words or figures for purposes of ascertaining handwriting, signature or seal.

Under s. 72(3), the same provision requiring a person to give specimen handwriting and signature applies equally as well to cases of finger impressions.

General Rules with Regard to Proof The general rule is that documents must be proved by primary evidence. That in practice means that a person who wishes to rely on a document as evidence in his case must produce an exhibit of the original to court (s.63).

S.63 provides that documents must be proved by primary evidence except in those cases provided under the Evidence Act.

Several authors have argued that the rationale behind the rule that documents must be proved by primary evidence is based on the BEST EVIDENCE RULE. According to Phipson on Evidence, the rule states that the best evidence must be given which the nature of the case permits. The statement was restated in the case of Onyelumbi v Barker. Lord Hadding said that: “the judges and sages of the law have laid it down that there is a general rule of evidence – the best that the nature of the case will allow.”

In Brewster v Sewall, the court restated that the best evidence rule with regard to documents. It was said that the reason why the law requires the original document to be produced is that other evidence is not satisfactory where the original document is in possession of a party and where it is in his power to produce it. If he does not produce it or take the necessary steps to obtain its production but resorts to other evidence, the fair presumption is that the original document will not answer his purpose and that it will differ from his secondary evidence which he adduces.

The rule has been made out in such general terms that that whatever is made out is the best evidence. This is in practice based on some social considerations such as the following: (a)Public convenience which requires certified copies to be allowed in place of the originals when dealing with public documents. (b)Speed and economy in the administration of justice.

(c)Public policy such as when some documents are state secrets and therefore privileged. Bu that notwithstanding, the rule is still very useful and relied upon by courts. Wigmore argues that documentary evidence is the best for two reasons: (i)As between the original and a copy, the latter is bound to have inadvertent or wilful errors on the part of the copyist. (ii)As between the original and the copy, there are additional risks of error in recollection due to difficulties in memorising the literal tenor of the document. In Vincent v Paul, the judge stated that:

“I have always acted most strictly upon the rule that what is in writing shall be proved only by the writing itself. My experience has taught me the extreme danger of relying on recollections of witnesses as to the contents of written instruments. They may be so easily mistaken that I think the purpose of justice requires the strict enforcement of the rule.”

Historical origins of the rule It has been argued that the law of documentary evidence originates from the primitive way of trial by documents. Under this situation if a person produced a document it was viewed as sacrosanct and that person won the case. If a person produced a copy then he would lose the case since only an original could stand up in court. This became very unfair and a number of exceptions were developed the first of which provided for; (a)An equitable remedy under which one would seek an “order of discovery”. One would apply to court to compel the adversary to produce certain documents in his or her possession for the examination of the party who did not have them. (b)Where the original document was proved to be lost the court would allow secondary evidence to be adduced. These exceptions still exist under common law and have also been incorporated into Ugandan law.

Exceptions to the rule of Proof by Primary Evidence

Most of the exceptions appear in s.64 of the Evidence Act which contains the instances under which secondary evidence of the contents of documents may be given. Under the section, secondary evidence may be given: (1) When the original is shown or appears to be in the possession of the person against whom the document is sought to be proved or in the hands of any person who is out of reach or not subject to court process or of any person legally bound to produce it before the court but who after being given notice to produce it does not do so.

S.64 (a) has three main instances under which the original may be dispensed with: (i)Where the document is in the possession of an adversary who refuses to produce it on notice. This is where the innocent party wishing to rely on the document can apply for an order of discovery. In Lakhamani Ranji v Jessa & Sons, the appellant sued the respondent for payment for extra work done under a building contract.

The respondent’s defence was that the parties had discussed the matter and agreed on a fixed sum as payment for all work done and that later a cheque was sent to the appellant together with a letter stating that the cheque was in full payment of the appellant’s dues. The appellant denied the sending of the letter. The respondent produced a carbon copy of the letter as evidence. It was accepted by the lower court and the appellant appealed one of the grounds being that the carbon copy was not properly admitted. The court held that the carbon copy was properly admitted under S.63 (a) [which is equivalent to s.64 (a)].

Under the provision, there is a need for notice to be given for the other person to produce the document. In other words before secondary evidence is admitted under s. 64(a), notice must have been given. This is provided for under s.65. The rationale for s.64 is that:

(a)It helps to avoid unnecessary delay (b)As an element of justice, it ensures that an innocent person who has not got the original will be allowed by the law to rely on secondary evidence where the adverse party refuses to release that original. (ii) When the original is in the hands of a person out of the jurisdiction, then the court should accept secondary evidence. (iii) When the original is in the hands of a person legally bound to produce it but when after notice has been given he or she refuses to produce it, secondary evidence should be admitted.

Some authors have argued that this is a very confusing provision. Sarkar on the Law of Evidence argues that this particular provision was put there erroneously and misleads. It should have read “if it is in the hands of somebody who is not legally bound to produce it”.

(2)Under s. 64 (b), when it is proved that the contents, existence or condition of the original have been admitted in writing by the person against whom they are sought to be proved or by his representative in interest, then the need for the original may be dispensed with. There is a condition that under this the admission has to be in writing for it to have any validity. For s.64(b), the kind of secondary evidence that is admissible is the written admission of the existence, contents or condition of the document.

(3)Under s.64(c) three main circumstances under which secondary evidence may be admitted are provided for: (a) where the original is destroyed or lost. To rely on this circumstance, it must be proved that the original document existed and that a diligent but failed search was conducted. In order to prove destruction, one must prove the existence of the document and actual destruction. This can be done by swearing an affidavit or calling witnesses to testify to the destruction. (b) where the original is in the hands of a person who is not legally bound to produce it and who after being given notice to produce it does not do so.

This circumstance envisages a situation where a person is not a party to the suit but has custody of the document. (c) where a person seeking to adduce the document cannot, for any other reason not arising out of his own default or neglect, procure the production of the document in reasonable time. Under these circumstances, any kind of secondary evidence can be adduced. (4) S. 64(d) if the original is of such a nature as not to be easily movable, then a person can apply to court to give secondary evidence and under the section, any kind of secondary evidence will be admissible. (5)

Under s.64 (e) and (f), other exceptions are provided. Under (e), where the original is a public document within the meaning of s. 73 and under (f) if the original is a document of which a certified copy is permitted by the Act or any other law in Uganda to be given in Evidence, secondary evidence of the certified copy of such document can be allowed. (6)Under s. 64(g), if the original consists of numerous accounts of other documents which cannot be conveniently examined in court and the fact to be proved is the general result of the whole collection, secondary evidence may be admitted.

Under the section, it is provided that in the case of (g) evidence may be given as to the general result of the documents by a person who has examined them but the person must be skilled in the examination of such documents.

In John Baptist D’sa v R [1957] EA 627 two bank clerks were jointly tried and convicted of fraudulent false accounting and stealing from their employer. At the trial, a bank inspector gave evidence for the crown about searches in the bank’s books of account. The magistrate made reference to a documentary exhibit. The two appellants appealed against conviction on the ground that contrary to the Evidence (Bankers Books) Ordinance, neither the original accounts referred to inspector’s evidence nor copies were produced and therefore the inspector’s evidence being secondary evidence was inadmissible.

Court held that s. 63 of the Evidence Ordinance sets out exceptions to the general provision of s.62 which requires documents to be proved by primary evidence. That the subject matter of the inspector’s evidence, its purpose and his capacity fulfilled the requirements of s. 63(g) and that accordingly secondary evidence was rightly admitted. The court restated the provisions of s. 63(g) of the Ordinance and outlined the requirements to be satisfied before secondary evidence can be admitted under the section. These were that: (a)The witness had to be skilled in the examination of the document in question. (b)The witness must have himself examined the documents.

(c)The documents must consist of numerous accounts or other kinds of documents not capable of being conveniently examined. (d)The secondary evidence must be for the purpose of proving the general result of the whole collection. The court held that the four circumstances had been satisfied and therefore confirmed the decision.

The rationale for the provision in s. 64(g) is that because it has an element of convenience, it avoids unnecessary delay. It also recognises that the court may not have the professional skills to examine the relevant books.

In Brown v R, the issue was whether an inspector of police is a person skilled in examination of books of account. The court held that the evidence of the inspector of police was admissible and not rendered inadmissible because it also indicated in general terms the effect of the contents of other documents examined. Court said that had there been any objection to the examination of the inspector or had the defence expressed a wish to test the accuracy of the inspector’s evidence, the relevant documents would no doubt have been forthcoming.

S. 37 of the Evidence Act provides that when any statement of which evidence is given forms part of a longer statement or part of an isolated document or is contained in a document which forms part of a book or a connected series of letters or papers, evidence shall be given of so much and no more of the statement, document, book or series of letters or papers as court considers necessary in the particular case to the full understanding of the nature and effect of the statement.

The other provisions related to s. 64(g) is in the Evidence (Bankers Books) Act, Cap. 7 which deal with Banker’s books.

Under s.1 (b), “bankers’ books” includes ledgers, day books, cash books, account books and all other books used in the ordinary business of the bank.

Section 2 provides that: “Subject to this Act, a copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of that entry, and of the matters, transactions and accounts in recorded in it.”

It is provided in section 3 that: “(1) A copy of an entry in a banker’s book shall not be received in evidence under this Act unless it is first proved that the book was at the time of the making of the entry one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody or control of the bank. (2) Such proof may be given by a partner or officer of the bank, and may be given orally or by an affidavit sworn before any commissioner or person authorised to take affidavits.

Section 4 states that: “(1) A copy of an entry in a banker’s book shall not be received in evidence under this Act unless it is further proved that the copy has been examined with the original entry and is correct. (2) Such proof shall be given by some person who has examined the copy with the original entry, and may be given either orally or by an affidavit sworn before any commissioner or person authorised to take affidavits.

According to section 5, a banker or officer of a bank shall not, in any legal proceeding to which the bank is not a party, be compellable to produce any banker’s book the contents of which can be proved under this Act, or to appear as a witness to prove the matters, transactions and accounts recorded in a banker’s book, unless by order of a court made for special cause.

Section 6 provides that: (1) On the application of any party to a legal proceeding, a court may order that the party be at liberty to inspect and take copies of any entries in a banker’s book for any of the purposes of those proceedings. (2) An order under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank three clear days before it is to be obeyed, unless the court otherwise directs.

Presumptions under the Law of Documentary Evidence S.3 of the Evidence Act provides for inferences that a court may make of the existence or non existence of certain facts and according to subsection1, whenever it is provided by this Act that the court may presume a fact, it may either regard that fact as proved, unless it is disproved, or may call for proof of it and in subsection 2, whenever it is directed by this Act that the court shall presume a fact, it shall regard that fact as proved, unless it is disproved.

This means that there are rebuttable and irrebuttable presumptions. Section 3 (1) and (2) provide for rebuttable presumptions while s. 3(3) provides for irrebuttable presumptions by providing that: “When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.”

Presumptions are important in appeals and these include the following:

1. Record of proceedings of the trial court It is presumed that these are good records and therefore genuine and can otherwise not be challenged on appeal. This is provided for under s. 79 of the Evidence Act which states that: “Whenever a document is produced before any court, purporting to be a record or memorandum of any evidence given in a judicial proceeding or before any officer authorised by law to take evidence, required by law to be reduced to writing, and purporting to be signed by any judge or magistrate, or by any such officer as aforesaid, the court may presume that the document is genuine and that the evidence recorded was the evidence actually given; may take oral evidence of the proceedings and the evidence given; and shall not be precluded from admitting any such document merely by reason of the absence of any formality required by law; provided always that an accused person is not injured as to his or her defence on the merits.”

This section was considered in the case of R v Mitha where the accused was charged with perjury. At his trial, court’s record of evidence was used as the main proof of the false statements made by the accused. He challenged this as being improper. Court held that under section 78 [now 79], court may presume that evidence recorded is evidence which was actually given and used against the accused.

2. Presumptions as to Depositions A deposition refers to a situation where the witness, for a reason, cannot be present in court to give evidence in person and instead a deposition is sent to court. In this situation, a court constitutes a commission to go and take evidence where a person is found. That deposition will be presumed genuine unless evidence to the contrary is proved. It can be used by the court without calling the person who made the deposition or the person who took it since this person is presumed to have had the power to take it down.

Order 48 of the Civil Procedure Rules provides for such Commissions. In Magoti v R, a deposition was made in a murder case a clerk from the magistrate’s court was called to adduce evidence of that deposition in order to defeat a witness’s credibility. With regard to the admissibility of the deposition, court held that the original depositions transmitted to the High court may generally be put in evidence without further proof and that there was no need to call the clerk who recorded the deposition in order to adduce it in evidence. Court said that it is only in the rare cases where some objection is made to the signatures or to the accuracy of the record that further proof is required.

3. Under s. 81, there is a presumption as to documents admissible in the United Kingdom or Ireland. It is provided that: “(1) When any document is produced before any court, purporting to be a document which, by the law in force for the time being in the United Kingdom or the Republic of Ireland, would be admissible in proof of any particular in any court of justice in the United Kingdom or the Republic of Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the court shall presume that the seal, stamp or signature is genuine, and that the person signing it held, at the time when he or she signed it, the judicial or official character which he or she claims. (2) The document shall be admissible for the same purpose for which it would be admissible in the United Kingdom or the Republic of Ireland.”

Hence, for one to rely on the provision, it must be proved that it is valid for British and Irish Courts. In Venn v Venn, an affidavit of service upon a woman in a Divorce cause was sworn before a Commissioner for Oaths in England. The issue was whether an affidavit sworn before a Commissioner in England was admissible in Kenya. Court held that it was admissible having regard to s. 82(1) of the Kenya Evidence Act [which is equivalent to s. 81(1) of the Uganda Evidence Act]. That an English Commissioner for Oaths can take an affidavit anywhere in Her Majesty’s dominions or elsewhere and it could be admissible in evidence in England and as such with regard to s. 82, it could also be admissible in Kenya.

In Tootal Broadhurst & Another v Ahmed, the plaintiffs claimed an injunction, damages and other relief for infringement of registered designs. They relied upon a document bearing the seal of a patent office in Great Britain purporting to be a copy of a certificate of registration of the design together with a certificate bearing the seal of the patent office in Great Britain. The issue was whether a certificate of Registration was a public document and whether it was admissible under s. 82 of the Kenya Evidence Act.

Court held that a certificate of registration was a public document and was also admissible under s. 82 of the Kenya Evidence Act since such documents would be admissible in England to prove the registration of designs to which they refer under s.24 of the Registered Designs Act and other Acts. That s. 82 provides that when a document is produced before any court purporting to be a document which by the law in force for the time being in England or Ireland would be admissible in proof of any particular, the court shall presume such document to be genuine.

4. Under s. 80, there is a presumption as to the genuineness of gazettes, News papers and private Acts of Parliament. It is provided that: “The court shall presume the genuineness of every document purporting to be the Gazette, or the Government Gazette of any country of the Commonwealth, or to be a newspaper or journal, or to be a copy of a private Act of Parliament printed by a government printer or in any of the manners mentioned in the Documentary Evidence Act, 1882, of the United Kingdom, and of every document purporting to be a document directed by any law to be kept by any person, if the document is kept substantially in the form required by law and is produced from proper custody.”

5. Under s. 81, the court is bound to presume the genuineness of maps or plans purporting to be made by the authority of government. This was considered in Magoti’s case where the court held that where a sketch plan is produced in evidence, it must be proved and it is better that information obtained in regard thereto should be kept separate from the plan. That the plan was not very material in this case since the court and the assessors visited the scene.

6. S. 90 sets a presumption as to the genuineness of documents of thirty years which are in custody which the court considers proper.

7. Section 84 provides a presumption as to private documents executed outside Uganda and how they can be proved. It is stated that: “The court shall presume that private documents purporting to be executed out of Uganda were so executed and were duly authenticated if— (a) in the case of such a document executed in the United Kingdom, it purports to be authenticated by a notary public under his or her signature and seal of office; (b) in the case of such a document executed (elsewhere than in the United Kingdom) in the Republic of Ireland or in any country of the Commonwealth outside Africa, it purports to be authenticated by the signature and seal of office of the mayor of any town or of a notary public or of the permanent head of any government department in the Republic of Ireland or in any such country of the Commonwealth;

(c) in the case of such a document executed in any country of the Commonwealth in Africa, it purports to be authenticated by the signature and seal of office of any notary public, resident magistrate, permanent head of a government department, or resident commissioner or assistant commissioner in or of any such country; and, in addition, in the case of a document executed in Kenya, it purports to be authenticated under the hand of any magistrate or head of a government department; (d) in the case of such a document executed in any place outside the Commonwealth and the Republic of Ireland (in this section described as a foreign place), it purports to be authenticated by the signature and seal of office— (i) of a foreign service officer of Uganda or of a British consul or diplomatic agent in such foreign place;

or (ii) of any secretary of state, undersecretary of state, governor, colonial secretary, or any other person in that foreign place who shall be shown by the certificate of the consul or diplomatic agent of that foreign place in or for Uganda to be duly authorised under the law of that foreign place to authenticate the document;

(e) in the case of such a document executed in any part of the Commonwealth or the Republic of Ireland, which affects or relates to property not exceeding in amount or value two hundred pounds sterling there purports to be appended to or endorsed on the document a statement signed by a magistrate or a justice of the peace of the part of the Commonwealth or the Republic of Ireland in which the document is executed— (i) that the person executing the document is a person known to him or her; or (ii) that two other persons (known to him or her) have severally testified before him or her that the person executing the document is a person known to each of them.”

8. Under section 85, a power of Attorney is presumed to have been sworn before a person with that authority. This is a rebuttable presumption. It states that: “The court shall presume that every document purporting to be a power of attorney and to have been executed before and authenticated by a notary public, or any court, judge, magistrate, or representative of any government of the Commonwealth, was so executed and authenticated.” 9. Under s. 86, there is a presumption as to certified copies of judicial records of countries not part of the commonwealth. It is provided that:

“The court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of the Commonwealth is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of any government of the Commonwealth in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.”

10. Under s. 87, court may presume the genuineness of any book, map or publication which may be referred to in matters of public or general interest. 11. Under section 89, a court shall presume that every document called for and not produced after notice to produce is genuine.

EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE The question is usually whether oral or other evidence can be adduced to prove opr vary the terms of a written document. That is to say, how admissible is extrinsic evidence where documentary evidence is in existence. Can oral evidence be adduced to prove the terms contained in the document written?

The general principle mainly operates in two situations: 1. Under s. 91, when the terms of a contract or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence, except as mentioned in section 79, shall be given in proof of the terms of that contract, grant or other disposition of property, or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

This provision was well considered in the case of Kilonzo s/o Kanyanya v Purshotam. The respondents, Indian traders sued the appellant a native upon twelve bills of exchange and one promissory note. The appellant disputed the claim arguing that it was a claim issued for credit by a non-native to a native and that since it exceeded two hundred shillings, it should have been attested by a District Officer as required by law.

Court said that by virtue of section 91 of the Indian Evidence Act, when the terms of a contract have been reduced to the form of a document such as a bill of exchange, no other evidence is receivable as to the nature of the contract except the document itself.

2. Transactions which are required to be in writing. This is provided for under s. 92 of the evidence Act which provides that: “When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from its terms.”

For example under s. 5(1) of the Sale of Goods Act, a contract for the sale of any goods of the value of two hundred shillings or more shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive them, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract is made and signed by the party to be charged or his or her agent for that purpose.

Under s. 3(1) of the Contract Act, contracts of guarantee must be in writing. The provision reads as follows: “No suit shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person unless the agreement upon which the suit is brought, or some memorandum or note of the agreement, is in writing and signed by the party to be charged with it or some other person lawfully authorised by him or her to sign it.”

Under the Money Lenders Act, money lending transactions must be evidenced in writing. Section 6(1) of the Money Lenders Act provides that: “No contract for the repayment by a borrower of money lent to him or her or to any agent on his or her behalf by a moneylender or for the payment by him or her of interest on money so lent, and no security given by the borrower or by any such agent as aforesaid in respect of any such contract shall be enforceable, unless a note or memorandum in writing of the contract is made and signed personally by the borrower, and unless a copy of the note or memorandum is delivered or sent to the borrower within seven days of the making of the contract; and no such contract or security shall be enforceable if it is proved that the note or memorandum aforesaid was not signed by the borrower before the money was lent or before the security was given, as the case may be.”

The question of money lenders was considered in Damodar Jamadas v Noor Mohamed where it was held that s.11 places on the Money lender the onus of proof that a note or memorandum in writing and containing the requisite particulars was signed by and delivered to the borrower before the money lender can enforce the contract for payment or any security given by the borrower.

Proof of these acts is a condition precedent to enforcement of the contract or security, and if the requisite proof is not given, the money lender cannot succeed. That the onus is on the money lender to prove that a note or memorandum in writing was made and signed and can only be discharged only by production of the note or memorandum itself save in instances where secondary evidence is admissible.

The issue of sale of goods was considered in the case of Choitram v Lazar where the court said that contracts for sale of goods worth more than two hundred shillings not in writing and if there has been no part performance, such contracts are not enforceable and no oral evidence will be adduced to prove the contract.

GENERAL PRINCIPLE OF EXCLUSION OF ORAL EVIDENCE The general principle of the exclusion of oral by documentary evidence is referred to as the parole evidence rule. It is provided for in both sections 91 and 92 of the Evidence Act as outlined above. Both sections prohibit the adducing of oral evidence in any way to change the terms of a contract or any other disposition of property. However, if the oral evidence does not affect the terms, then such evidence is admissible.

This was considered in the case of Folkes v Tharkar. The appellants sued Bugabula Traders and the respondent as guarantors for a sum of money in respect of two consignments of flour delivered to the company on April, 18 and May 11th respectively. It was alleged that the respondents who were two of the directors of a company had on the 18th guaranteed payment of all moneys due by the company for the goods issued to them by the appellant.

They promised o sign a written guarantee within a few days and such written guarantee was delivered on May 22nd bearing the same date. At the trial the appellants sought to establish that the written guarantee had been signed not on May 22nd but in April before the delivery of the first consignment of flour and that it was preceded by an oral guarantee.

The trial judge ruled that such evidence was inadmissible. The appellant appealed against the judge’s ruling and contended that such evidence was to prove that the written guarantee was not signed before May 22nd. He also appealed against the decision that it did not relate to the credits prior to May 22nd and that it was not in any way binding upon the respondent.

It was contended for the appellant that the written guarantee covered both past and future credits and that the consideration for the guarantee was the promise for future credit. The issue was whether oral evidence was admissible to prove that the guarantee was signed before the date it bore. Court held that the date of signing of the contract was not a term of the contract and therefore oral evidence could be admitted to prove that the date appearing on that document was not correct.

The rationale for the rule Freedom of contract If parties have made a contract out of their own free will, the court’s duty is only to enforce that contract. It stems from sanctity of contract which is premised on free will and freedom of contract. The court is only there to interpret and not to change what the parties have agreed to.

The Best Evidence rule This rule states that the document itself is the best evidence of what the parties intended. The parties’ memories cannot be depended on.

EXCEPTIONS TO THE PAROLE EVIDENCE RULE The first exceptions are in s. 91 which provides the following list of exceptions to that rule. (i) If a public officer is required by law to be appointed in writing and it has been shown that any particular person has acted as such officer, the writing by which he or she was appointed need not be proved. (ii) As far as wills are concerned, it is provided that wills admitted to probate in Uganda may be proved by the probate.

Other exceptions include the following: 1. Section 92(a) of the Evidence Act provides that any fact may be proved by oral evidence, which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration or mistake in fact or law. In Patel v Patel, which was a suit on a bond, the defendant argued that the contract was in fact a money lending contract and that since the plaintiff was not a licensed money lender as required by law then the contract was void and illegal.

The plaintiff contended that the defendant’s oral evidence was inadmissible since this was a contract required by law to be in writing and which could be reduced into writing. Court stated the principles in s.92 (a) and held that money lending transactions by an unlicensed money lender are illegal and void and that evidence was admissible to prove that the consideration recited in the bond was unlawful and the bond therefore was void. That facts invalidating a contract may be proved by oral evidence.

Twentsche Overseas Trading Company v Kanji It was a hire purchase contract over a car. The respondent wanted to have the car transferred in his names. The appellants refused and adduced oral evidence to show that the respondent had not paid the full price of the car. On appeal the issue was whether oral evidence was admissible to contradict the written agreement and the receipt contained therein. Court held that the appellants were entitled to call oral evidence to show what the true consideration was and whether there had been a failure of consideration. That evidence adduced by them was in fact an explanation of the conditional nature of the receipt and was therefore admissible. That while s. 92 of the Kenya Evidence Act prevents the admission of oral evidence, it does not prevent a party to the contract from claiming that there was no consideration or that the consideration was different from that described in the contract or that it was agreed to be paid in a different manner.

In Uganda Produce Timber Co. v Registered Trustees of St. Joseph’s Mission, the governor of the Uganda Protectorate wanted to rely on a habendum to an agreement between him and the Busoga Chiefs which conferred upon him lands in fee simple. The court having found that the habendum to the indenture conferring forest rights and timber rights upon the governor was induced, however innocently, by the Land Officer’s letter and because the minds of the parties to the indentures executed between the governor and the respondents were not ad idem on an essential part of the contract