Statements by a Party

The law of evidence is a set of rules and principles for effecting judicial investigation19. It is mainly concerned with the mode of proving facts in court of law, it provides also for qualifications of witnesses and various classifications of evidentiary matters which for one reason or the other are admissible or rejected. Admissions are part of evidence law. Under the Tanzania Evidence Act, 196720 (hereinafter referred to as TEA) admissions are statements oral or documentary which suggest an inference as to a fact in issue or relevant fact, and which is made by any of the persons, in the circumstances mentioned in sections 20 -2221.

As a general rule admissions may only be proved against the person making it or his or her representative in interest. If an admission is made in favour of the maker it is not an admission22. In criminal cases there are two kinds of admissions; that is (i) confessions and (ii) admissions, which are not confessions. Confessions are voluntary acknowledgement of guilt by an accused while admissions, which do not amount to confessions, are those statements made by an accused direct or implied of facts pertinent to the issue and tending in connection with proof of other facts to prove his guilt.

However, these statements alone cannot form a basis for conviction. 2. 2. THE DEFINITION OF THE TERM ADMISSION The Tanzania Evidence Act define the term admission as a statement, oral or documentary which suggest any inference as to a fact in issue or relevant fact, and which is made by any of persons, and in the circumstances mentioned under the Act23. According to Osborn's dictionary24, admissions are statements, oral or written or inferred from conduct, made by or on behalf of a party to a suit, and admissible in evidence, if relevant as against his or her interest. They are either formal or informal.

Admissions can also be classified into implied and express admissions. Morris25 defines admissions as a statement oral or documentary, which suggests any inference as to any fact in issue or relevant fact, made by a party to proceedings or by his agent expressly or impliedly authorized by him to make such a statement. Going by the above definitions, it can be said that save for formal admissions, all other admissions, are subject to corroboration in order to form a basis of conviction and that the nature of admissions is that it must always be in favour of the adverse party and thus against the interest of the maker.

If a statement is made in favour of the maker it is not admission. 2. 3. CLASSIFICATION OF ADMISSIONS Classification of admissions depends on the selected context. One can classify admissions as formal and informal (judicial and quasi or extra judicial) similarly as express and implied. An admissions is said to be formal or judicial when made in the pleadings for the purpose of litigation and thus conclusive, for example where a contract and breach are admitted.

This is so because judicial admissions are not a means of evidence but a waiver of all controversy and, therefore, a limitation of issue26. In the case of Tsdale v R27 Vann, J. had this to say: "The pleadings are before the court, not as evidence but to point out the object to which evidence is to be directed". It is informal or quasi-judicial when made before or during the proceedings in which case they are not conclusive e. g. a plea of guilty or admitting a material fact. Other types of admissions are express and implied admissions.

Express admissions may be in form of uttered words of statements or written while implied admission may be through conduct of the party such as in the circumstances where an accused is required or expected to speak something but he or she decides to keep quite; the act of keeping quite may be associated with admitting a fact in issue28. However, conduct in itself cannot be called an admission, as admissions are statements by persons oral or written. Such conduct may only serve as circumstantial evidence affording materials for inference. 

As stated above, admissions are oral or written statements; when the admission is by words (oral) may be made in any form and any circumstances but such admissions are not conclusive unless they are successful denied or satisfactorily explained. In the case of R v Simon29 for instance, it was proposed on a charge of arson to call a witness to prove what the prisoner said to his wife on leaving the magistrate's room after committal, and the magistrate allowed the witness to be called because what a person is overheard saying to his wife, or even saying to himself, is evidence.

The admissibility of admissions rests on the theory of the adversarial system that a party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence except when speaking under sanction of oath. In determining admissibility the general rule is that preliminary questions, which are a condition for admissibility, are for the trial judge in his or her capacity as a judge of the law rather than as the trier of fact. If actual questions must be resolved, a voir dire may be required. 2. 5. PERSONS WHO CAN MAKE ADMISSIONS

Admissions of parties to a suit or proceedings are the best evidence against the party making them. This works on the assumption that what is admitted by a party to a suit or proceedings must be presumed to be true unless the contrary is proved. In the case of Safiel Mrisho v R30 the appellant admitted the offence of driving the motor vehicle on the public road with defects. On appeal the issue was whether the accused's plea of guilt to drive a motor vehicle with defects could be used as evidence to the charge of causing death through careless driving.

The court held that: "words spoken by an accused in his plea count can be used as evidence against him. " However, a party to a proceeding may be affected by the admission of persons who stand in the following relations. 2. 5. 1. Party's representative A party to a proceeding is bound by his or her own admission. However, statements made by parties in a representative character if made while sustaining that character are admissible otherwise they are not admissions. Thus a statement by a trustee is not admissible against him or her when sued as a trustee if they were made before he became a trustee31.

Statements by a Party to the proceedings or an Agent In criminal cases, statements of agents are not evidence for the purpose of attaching criminality to the principal. Thus, a party can only be affected by statements of others if they have been expressly directed or assented to be bound by those statements. In the case of R v Harper-Taylor32 it was said that an admission by a counsel of the accused under the latter's instructions, but which the accused subsequently changed his mind was held to be inadmissible on the grounds of material irregularity.

Statements made by a party to the proceedings or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions. 2. 5. 3. Referee Statement made by someone whom a party has referred for information may be proved against him as an admissions concerning the subject matter of the reference. Under s. 22 of TEA it is not necessary that such statements of fact should be within the knowledge of the referee. Information may be gathered by inspection of the record or any other means.

Person having pecuniary or proprietary interests to the party An admission made by one of the partners or persons joined in a subject matter in a representative suit capacity may be admitted against the other partners whereas an admission made by a member of a particular company in a representative character will bind the company. Likewise an admission of one person having pecuniary interest made in a representative character will be binding upon himself and other partners jointly interested in the subject matter33. 

In terms of the Tanzania Law of Evidence Act, statements by persons from whom the parties to the suit have derived their interest in the subject matter of the suit are admissions if they are made during the continuance of interest. Such statements must have been make while the maker held the interest otherwise the admission will not be relevant under the provisions of section 20 (3) (b) of TEA. 2. 6. TO WHOM ADMISSIONS CAN BE MADE In Tanzania the law34 specifies three classes of people to whom admissions amounting to confessions can be made.

These are Police Officers of the rank of corporal and above, Justices of the peace35 and Magistrates36. But according to Sarkar37, confessions may be properly be made to any person or collection of body of persons, and that it is not necessary that the statement should have been addressed to any definite individual. ADMISSION AMOUNTING TO CONFESSION All confessions are admissions. As Sarkar38 correctly points out that "a statement made by an accused person to a police officer, belong to a class called 'admissions' and prima facie they are evidence against the maker but not in his favour; they are thus admissible.

" The issue of an admission amounting to confession is found in the case of Mustafa Msumi v R39. In this case the accused was convicted by the lower court for stealing. The accused stated to a Police Officer that, "he had not stolen the pouch but picked it from the car to find its owner". The lower court found it that such a statement amounted to a confession. But on appeal, the High Court held that: "The statement is admissible as it constitutes an admission and it is not per se a confession because of the exculpatory facts which make it an admission and it is thus admissible as evidence under s.

19 of TEA" Confessions made to a person other than those listed in the TEA are not prima facie evidence against the maker they ought to be proved in evidence. Confession is an admission of guilt made to another by a person charged with a crime. It is admissible only if free and voluntary; that is, if it is not forthcoming because of any incident, or threat, held out by a person in authority. It must not be made under hope of reward (other than spiritual) or fear of punishment in a relation to the proceedings.

The onus of proof that a confession was voluntary is on the prosecution40. Admissions may be obtained from a person by questions fairly and properly put to him by a police officer. Phipson41 defines confession as a type of admission in relation to crime, that is, an admission from which reference may be drawn that the accused committed the crime charged. Fields42 defines confession in reference to the Indian Evidence Act 1872, that a confession is a type of admission made by a party against his interest.

According to Wigmore43 a confession is an acknowledgement of guilt in express words by the accused person. The earliest definition of confession was tested in the case of Swami V King Emperor44 where it was said, inter alia, that: "No statement that contains self exculpatory matter can amount to a confession; if the exculpatory statement is of some fact, which if true would negative the offence alleged to be confessed. A confession must admit in terms all the facts which constitute the offence. " Under the Evidence Act of Tanzania45 confession is defined to mean:

Words or conduct or a combination of both words and conduct form which whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offence or (b) a statement which admits in terms either an offence the person making the statement has committed the offence or (c) a statement containing an admission of all ingredients of the offence with which its make is charged.

(d) a statement containing affirmative declarations in which incriminating facts are admitted from which when taken alone or in conjunction with other facts proved, an inference may reasonable be drawn that the person making the statement has committed the offence. " According to Mtana46 the above definition is a wider interpretation of the term confession, which is very clear, and that it covers all aspects pertaining to definitional approach for better administration of justice. Classification of Confessions Like general admissions, confessions also are of two folds; Judicial and Extra Judicial confessions.

Confessions are judicial when made by the party before the magistrate or in court in the due course of legal judicial proceedings; it may as well be termed as a plea of guilt. On the other hand, Extra Judicial confession is that statement made by an accused else where other than before the magistrate in court. Whether a confession is Judicial or Extra Judicial it may still in itself be sufficient to warrant a conviction provided it is voluntarily obtained47. Furthermore, like other admissions the effect of proof or confessions is to shift the burden of proof to the accused person to disprove the confession he is alleged to have made.