MZUMBE UNIVERSITY

FACULTY OF LAW

PROGRAM : LLB 2

SUBJECT CODE : LAW 222

SUBJECT NAME : LAW OF EVIDENCE I

LECTURER : MR. KILONZO

TASK : GROUP ASSIGNMENT

STREAM C GROUP NO.6

No NAME OF MEMBERS REGNO

1. DEBORAH D. MAHABULA 1236128/T.24
2. HAMZA HASSAN HAMZA 1236151/T.24
3. WITNESS FREDRICK LYASATO 1236098/T.24
4. MAXMILIAN RUNOCHO MULELWA 1236126/T.24
5. ANNA OSWARD SYOLA 1236100/T.24
6. PHILIP ANDREW MPANGALA 1236097/T.24
7. JOSEPH DIDAS MASANJA 1236095/T.24
8. NELLY ELIAS MBUGHI 1236094/T.24
9. JOHNSON SAMSON MARWA 1236101/T.24
10. ABDULRAHIM SULEIMAN JUSSA 1236210/T.24
11. BERENIA JIRUNGU NYANGA 3132016/T.24
12. LOVENESS GEORGE STEPHANO 1236281T.24

QUESTION SIX
a) We can say here that evidence may fall within the common law definition of hearsay but still be
treated as admissible because either England it falls under common law exception or in Tanzania
Evidence Act says so. Discuss.

b) Discuss circumstances that lend strength and reliability assurance to a dying declaration

1
1.0 INTRODUCTION

1.1 THE SCOPE OF THE QUESTION

Part A of the question requires or demands to explain hearsay evidence in general, rationale
behind its admissibility, circumstances and its exception under common law and Tanzania
Evidence Act. Discuss.

Also in part B of the question requires us to discuss the circumstances that lend strength and
reliability asuarence to a dying declaration.

PART A OF THE QUESTION

Hearsay Evidence:
Is a statement made by the third person while testifying at the prior or hearing
other than made by the person who originally declare. It is therefore a testimony regarded as
second hand evidence it is not what direct witness knows personally but what someone else told
him or her.
OR
is a statement made otherwise than by a person while giving oral evidence in the proceedings
which is tendered as evidence of the matters stated1.
As provided In the case of R v. Sharp2 Lord Havers said I accept the definition of the hearsay
rule in Cross on Evidence, ``an assertion other than one made by a person while giving oral
evidence in the proceedings is inadmissible as evidence of any fact asserted.'' As it is very
comprehensive and interesting discussion it is believed that it will be dangerous relying on third
person who give evidence from original person. As a result the general Rule is that Hearsay
evidence is not admissible. However it is for all other general rule this rule admits its own
exception. The evidence Act does not provide for hearsay evidence but Section 67(1) (a) - (d)of
The evidence Act3 it provide against hearsay that oral evidence must or shall be direct and
accordingly preferred to be the best evidence where we can say that the one who saw, heard and
perceived by sense.

1
Raymond Emson, Evidence (2ND Ed, palgrave Macmillan, 2004)
2
[1988] 1 WLR 7 (HL)at pg.11
3
[CAP 6 R.E 2023]
2
 Before going to the exception we have to discuss the rationale behind the rule against the
hearsay evidence though it has an exception of being admissible. The following are the reasons
or Rationale behind as to why the hearsay evidence is not admissible as follows:
It is not taken under oath: an oath is a solemn declaration to God of a person that is
going to tell is truth only and not a lie. When a third person with hearsay evidence is not
subjected to an oath. The law has to take account of such things as the power of witness, the
quality of their memories the competence of their knowledge. These factors demand. That
testimony which is to be received must be given by a witness in open court upon oath hearsay
does not satisfy these conditions and so it excluded 4. As provided in the case of Teper vs R5 Lord
normand said, rule against admission of hearsay evidence is fundamental, it is not the best
evidence and it fundamental. It is not the best evidence it is not delivered on oath.
It presupposes the existences of better evidence somewhere: from hearsay evidence
means there is an open hold direct evidence therefore a rule of justice hearsay evidence not
admissible, they need to call better evidence to be brought before the court, instead of relying on
third person evidence and according to the law best evidence is the direct evidence and that is
oral evidence that comes direct from the victim or owner of that testimony need to prove some
fact ins issue before the court of law as provided under Section 67(1) of the Evidence Act 6
that fact which could be seen, heard, perceived, to the ground on which that opinion it must be
the evidence of a witness who says he saw it, heard it, he perceived it by that sense and person
who holds that opinion or who hold it on those grounds. As provided in the case of R Vs McCay
7
other related terms to the term hearsay are ‘ UN ORIGINAL EVIDENCE’ “ transmitted
evidence second hand evidence “ a something which a witness before the court says that he heard
from third party who is not called as a witness and the statement of that witness is in admissible
to prove truth of fact stated, because the rule against hearsay evidence believe that there is a
person who hold that original evidence and be regarded as the best evidence.
It prolongs litigations unnecessarily: this is whereby the a case suppose to be
entertained as speedier so as to lender justice are done and seen in a prescribed time but the act
of waiting or using the evidence from the third person instead of direct person it prolongs
litigations as provided in the case of Haji Ibrahim Vs R8 The appellant was convicted of corrupt

4
John woodruff& syed Amir Ali’s, Law of Evidence (17th ed Newdelhi Butterworhs,2001) P.1326
5
[1952] 2All ER 447, P.448
6
[Cap 6 R.E 2023]
7
[1991] 1 All ER 223
8
[1975]LRT 56
3
transactions, before he was tried for a different charge. He offered on goat to the magistrate so
that he could be decided in his favour. the police questioned msafiri who told them that he was
instructed by his employer to send goat to a magistrate . the statement was presented by the
police in court without calling msafiri to testify in court. Where the court held that the testimony
of a police witness about information by third party who is not called as witness is hearsay in
admissible.
Likely hood of Distortion and Fabrication: in hearsay evidence it’s a kind of narration
from a direct person to a third can be added or remove certain fact from what he receives and the
court can get evidence which in not good to support their case sometimes can lender to in justice
when relying it. as provided in the case of Kilongo vs R 9where the court held that hearsay
evidence is likely could be distorted or fabricated intention ally on un intentionally.
The court has not got opportunity to see the demeanor of the witness: This means
that haw a peso nooks like, how confidence , when testify or showing the pain when testify see
credibility of witness how sure is he or she testify, court cant test the demeanor of the direct
person with original information that’s why we don prefer hearsay evidence as a good evidence.
Hearsay evidence does not subjected to cross examination: as procedure of evidence
in a case a witness who testify have to be cross examined but hearsay evidence not subjected to
cross examination to be shaken credibility.

EXCEPTIONS OF HEARSAY EVIDENCE UNDER COMMON LAW

It is true that the evidence may fall within the common law definition of hearsay but still be
treated as admissible because either in England it falls under common law exceptions or in
Tanzania under Tanzania Evidence Act Under Common Law, the general rule is that hearsay
evidence is inadmissible unless it falls within a common law or statutory exception. 10

a) Dying declarations

The declarant's oral or written statement as to the cause of his death is admissible to prove those
circumstances, so long as he had a settled hopeless expectation that he would die within a short
time when his statement was made 11. In the case of R v. Lawson.12 where by The deceased had
9
(1958) EACA 152
10
Emson, R. (2004) Evidence. 2nd (Ed) New York: Palgrave McMillan P.143
11
R v. Perry [1909] 2 KB 697 (CCA), R v. Austin (1912) 8 Cr App R 27 (CCA).
12
[1998] Crim LR 883.
4
been found badly burnt and unconscious at the scene of a fire following an argument with her
husband, the accused. On the way to hospital, she began to regain consciousness and said, `You
have really got me now.' At the hospital she managed to dislodge her oxygen mask to say
`Murder, murder!' She died the next afternoon. The Court of Appeal held that her words were
prima facie admissible as dying declarations, subject to the judge's inherent discretion to exclude
the evidence if it was so unreliable or ambiguous that it would be unfair to invite the jury to
consider it.

b)Statements Forming Part of the Res Gestae

A statement made during or soon after an overwhelmingly dramatic event or just prior to an
imminent event of this sort which can be said to have been made spontaneously and in response
to or in immediate anticipation of that event, is admissible as evidence of the truth of the matters
stated.13 A statement forming part of the res gestae is one which can be said to be inextricably
linked in time and space with an event or state of affairs. In the case of R v. Bedingfield14,In this
case Bedingfield was charged with the murder of a woman. The deceased, her throat cut, came
out of her room where she had been with the accused and immediately exclaimed: “Oh dear
Aunt, see what Bedingfield has done to me!” Cockburn CJ. Held that although statements made
while the act is being done, such as “Don’t hurry” are admissible, the victim’s statement could
not be received in evidence because it was something stated by her after it was all over, whatever
it was, and after the act was completed as provided in the case of R vs Premji kurji15 the issue
was whether res-gestae evidence was on the stabing of the brother was relevant in the murder.
Where the court held that the evidence of the attack on the deceased was admissible in trhe
circumstances as a part of Res-gestae. As provided under section 8 to 18 of The Evidence Act16

c) Statements Made by Parties to a Common Intention (informal Admission)

The general rule at common law is that the incriminating statements a person makes are
admissible in evidence against himself, but not other people whom he mentions in it. 17A
statement made by one party to a common enterprise (such as a criminal conspiracy) is
admissible at common law against any other party to the enterprise so long as it was made in the

13
Emson, R. (2004) Evidence. 2nd (Ed) New York: Palgrave McMillan P.171
14
(1879) 14 Cox C.C 341.
15
(1940) VOL 7 EACA 58
16
[Cap 6 R.E 2023]
17
Spencer, J. R. (2008) Hearsay Evidence in Criminal Proceedings. USA: Hart Publishing P.146
5
course or furtherance of the enterprise and there is independent evidence of both the enterprise
and the other party's involvement in it. 18 Thus, in R v. Jones.19 it was held that a recording of
telephone conversations between parties to a common enterprise to import cannabis and third
parties, during which the involvement of B (a co-accused) had been mentioned, was admissible
evidence of B's guilt.

d)Statement made through mechanical devices

The strict of the rule against hearsay let the development of a certain exception at common
law through necessity, the development of exception has more recently been the problem of
the statement since the common law has not expanded his categories of exception.

Example: A recorded statement audio.

e) statement made in public

this is where by a person can take statement and testify in court and be admitted, document
concerning public matter and made by public officer under a duty to inquire into and the core
result to inquire. Example A heard the information from public.

EXCEPTIONS OF HEARSAY EVIDENCE UNDER TANZANIA EVIDENCE ACT.

The Tanzania Evidence Act makes provision that under certain circumstances hearsay evidence
is admissible. These cover admissions and confessions, statements made by persons who cannot
be called as witnesses, statements made in special circumstances. According to section 34 of The
Evidence Act.20 The provision makes admissible statements of persons: who are dead or
unknown; who cannot be found or who cannot be summoned owing to diplomatic immunity or
other privilege; those who have become incapable of giving evidence or persons whose
attendance cannot be procured without delay or expense which is unreasonable.

a)When the statement is made by the person as to the cause of his death (dying
declaration). As to any of the circumstances of the transaction which result in his death.
Under Section 34(a) of The Evidence Act 21, provide for the conditions of admissibility of such
statement and such statement made must relate with the cause of death. provide that, when the

18
R v. Murray [1997] 2 Cr App R 136 (CA) at pp. 147 and in the case of R v. Smart [2002] EWCA Crim 772. The other
case which held a similar view was the case of R v. Williams [2002] EWCA Crim 2208).
19
[1997] 2 Cr. App R 119 (CA)
20
[Cap. 6 R.E 2023]
21
[Cap. 6 R.E 2023]
6
statement is made by a person as to the cause of his death as to any of the circumstances of the
transaction which resulted in his death, In the case of R. v. Kayanda Alias Msila s/o Mkuyu and
Others22, a dying declaration by one Rubogi who was in fact murdered on the same occasion as
Mfanye for whose murder the appellants had been charged, though the two murders were not
made the subject of a single information, was held to be inadmissible since it was not Rubogi’s
death which was in question. in cases in which the cause of that person’s death comes into
question, whether the person who made them was or was not, at the time when they were made
under expectation of death, and whatever may be the nature of the proceeding in which the cause
of his death comes into question.

b. when the statement was made by such person in the ordinary course of business and in
particular when it consist of an entry or memorandum made by him in book or record kept
23
in the ordinary course of business or discharge of professional duty. . Provides that, the
basis of this position is that such statements are assumed to have been given without a particular
motive other than the fulfillment of ordinary duty in human life. Such statements, therefore, can
safely be assumed to be true. What is important to understand is that the particular statement or
entry must be relevant to the facts of the case in question. Statements of persons who are dead or
unavailable as elaborated and are admissible if the particular statement or entry is made in the
ordinary course of business or duty. The principle was elaborated in the oldest case Prince V.
Lord Torrington24, in this case The plaintiff, in order to prove delivery, produced a book
containing information on beer deliverance to customers and the signatures of the plaintiff’s
salesman who had duty to sign every after such delivery. At the time when the case was in court
the salesman had already died. The signature and the death of the salesman, who personally
knew of the items of delivery, were proved.

C) When the statement is against the pecuniary or proprietary interest of the person
making it or when , if true , it would expose him or would have exposed him to a criminal
prosecution or to a suit for damage, refer section 34(c) of the law of evidence Act.25

D)When it gives the opinion of a person on the existence of a public right or custom; Under
Section 34(d) of the Evidence Act 26. Such opinions are admissible if three things are fulfilled:
22
(1943) 10 E.A.C.A 117
23
[Cap. 6 R.E 2023]
24
(1703) LC 277
25
[Cap 6 R.E 2023]
26
[Cap.6 R.E 2023]
7
first, that the statement having such opinion must be on any matter of public or general interest,
second, the declarant must be a person who would have been likely to be aware of the existence
of the right in question and, third the declaration must have been made before the controversy to
such right or custom arose. Declarations of opinion of deceased or those persons who cannot be
found are admissible in proof of any public or general right or custom or a matter of public or
general interest. Public rights concern all members of a particular community or country e.g. the
right to collect road toll in a particular highway. However, a general right affects a smaller
portion of the community boundary between two villages.

E) statement made by a person who can not be proceed with out an amount of delay which
in the circumstance of the case appealed to court be un reasonable expenses indue delay .
refer in the case of Mohamed Mtaki V R.27, In the case the witness was suppose to attending the
case in Kampala and a witness from Switzerland.

F). A statement by a person who become incapable of giving evidence, once had good
evidence but incapability situation got that person cant testify again , another person can testify
and evidence admissible, may be mental or physical incapable.

G) A statement made by who can not be found any person know not found any where, by a
person who can not be summoned owning his entitled to diplomatic immunity , privilege or
similar reason we know the office but cant be call as witness example ambassadors counselors,
politicians his statement may be taken as evidence.

H) a Statement from a person who refuse voluntarily to appear and tesfy statements may be
admitted though hearsay, however the categories of these people whose statement are admissible
is not that general.

PART B OF THE QUESTION

Dying declaration: is one of the most delicate and controversial forms of evidence in criminal
proceedings, particularly in cases of homicide. It refers to a statement made by a deceased
person before he dies, explaining the cause of death or the circumstances leading to that death.

27
(1961) VOL I EA 206

8
It may be made oral or written made by a person as to the course of his death or as the
circumstances as to the transactions resulting in his death. Ordinarily, such a statement would be
excluded under the hearsay rule because the maker of the statement is not available for cross-
examination. However, the law of evidence recognizes dying declarations as a special exception
due to the unique situation in which they are made. 28 In Tanzania, the admissibility of dying
declarations is governed by section 34(a) of the Evidence Act.29 The philosophical justification
for this exception is rooted in the belief that a person who is at the point of death is unlikely to
fabricate lies. This belief is expressed in the Latin maxim “ nemo moriturus praesumitur
mentire”, meaning that a dying person is presumed not to lie. 30 Despite this presumption, courts
have consistently warned that dying declarations are inherently weak evidence. The absence of
cross-examination, the possibility of pain, fear, confusion, or influence, and the risk of mistaken
identification necessitate extreme caution. Consequently, courts have developed guiding
principles and circumstances that lend strength and reliability assurance to dying declarations
before they can safely be relied upon as provided in the case of Pius Jasunga s/o Akumu v. R.31
This work examines those circumstances in detail, supported by statutory provisions, judicial
decisions, and scholarly commentary. Also as provided in the case of Onael dawson macha vs R
32
A statement made by deceased person as to the cause of his death Admitted.

4. CIRCUMSTANCES LENDING STRENGTH AND RELIABILITY ASSURANCE ON

DYING DECLARATION.

4.1 Mental Fitness and Consciousness of the Declarant

The mental and physical condition of the declarant at the time of making the statement is a
primary factor in determining reliability. The declarant must have been conscious, mentally alert,
and capable of understanding questions and giving rational and coherent answers. 33 If evidence
shows that the declarant was unconscious, delirious, heavily sedated, or suffering from severe
shock, the reliability of the dying declaration is gravely undermined. Courts therefore require
proof, often from medical officers or eyewitnesses, that the deceased was in a fit mental state. In

28
Cross and Tapper on Evidence (13th edn, OUP 2018)
29
[Cap 6 R.E. 2023]
30
Ibid
31
(1954) 21 EACA 331
32
Criminal Appeal No.2007 of 2014 TZCA
33
Ibid
9
R v Ramazani bin Mirandu.34 the court held that a dying declaration should not be relied upon
unless it is proved that the deceased was mentally capable of making a coherent statement.
Similarly, in Pius Jasunga s/o Akumu v R.35 the court stressed that proof of consciousness and
mental fitness is an essential prerequisite. The High Court of Tanzania has reinforced this
position in Republic v Julius Mabizi Maswi. 36 where the court rejected reliance on an alleged
dying declaration after finding that the deceased was critically injured and there was insufficient
evidence to show that he was conscious and mentally fit when the statement was allegedly made.
The court held that without clear proof of mental fitness, such a declaration cannot safely be
acted upon. This approach demonstrates the High Court’s insistence that the prosecution must
establish the physical and mental capacity of the declarant beyond mere assumption before a
dying declaration can carry probative value.

4.2 Proximity of the Declaration to the Time of Death (Timing when was taken)

The timing of the dying declaration in relation to the death of the declarant is another critical
factor. Generally, the closer the statement is made to the time of death, the more reliable it is
considered. A declaration made shortly before death minimises the risk of fabrication, external
influence, or faulty memory. In R v Eligu s/o Odel.37 the court observed that a statement made
immediately before death carries greater evidential weight than one made long before death.
Although Tanzanian law does not require the declarant to have been under a settled expectation
of death, proximity remains an important consideration in assessing reliability. Where a
significant period elapses between the declaration and death, courts are more reluctant to rely on
the statement without corroboration.

4.3 Voluntariness and Absence of Tutoring, Pressure, fear or Induced statement

A dying declaration must be voluntary and free from any form of coercion, suggestion, or
tutoring. Statements obtained through leading questions or pressure from police officers,
relatives, or medical personnel are treated with suspicion. In Choge v Republic.38 the court
cautioned against relying on statements obtained through leading questions, particularly where
the declarant merely agrees with suggestions put forward by the questionaire. Courts expect

34
Ibid
35
(1954)VOL 21EAC 331
36
(2021) TZHC
37
Ibid
38
(1985) KLR 1
10
dying declarations to be spontaneous and uninfluenced. Where evidence of influence or
prompting exists, courts either reject the declaration outright or require strong independent
corroboration before relying on it.39 The court admitted the dying declaration because there was
no evidence of tutoring or influence. The victim`s statement was considered voluntary and
reliable, contributing to the conviction. In case of R v. Hassan bin Ismail.40 The court considered
whether a dying declaration was voluntary. The victim made a statement without police
prompting, and the court admitted it as evidence.

4.4 Consistency of the Declaration

Consistency is a strong indicator of truthfulness. Where a deceased person made more than one
dying declaration to different persons, and those statements are consistent in material particulars,
the reliability of the evidence is significantly enhanced. In R v Muyovya bin Msuma.41 the court
held that consistent statements made by the deceased to different witnesses reinforced the
credibility of the dying declaration. Conversely, material inconsistencies, particularly on the
identity of the assailant or the manner of attack, weaken the probative value of the evidence.
Minor discrepancies relating to peripheral details may be overlooked, but contradictions on core
issues are usually fatal unless satisfactorily explained.42 In case of R v. Omary d/o Mussa.43 The
court emphasized consistency between the dying declaration and other evidence. The victim`s
statement was consistent with witness testimony, making it more reliable.

4.5 Completeness of The Statement

The court has to satisfy itself that the dying declaration statement made by the deceased person is
complete and the words are not hanging without completing the statement which will be used as
evidence before the court of law example deceased person said “mwaju……” generally
statement of that kind is not admissible as provided in the case of Cryil Waugh vs R44 where the
deceased fail in coma while making statement when he never recover. And also in the case of R
45
vs Charles Daki s/o Daki deceased was interrupted by the doctor while making his statement

39
Ibid
40
(1974) HCD 134
41
(1939) 6 EACA 128
42
Ibid
43
(1980) TLR 57 (HCD)

44
(1950) AC 203
45
(1960) EA 34
11
in this two cases The court were in the view that deceased could have or not have added
something. therefore, statement were inadmissible.

4.6 Circumstances of Transaction

That to mean statement made must be relate to the cause of his death. It is required that dying
declaration must relate to the cause of death of the maker (declarant) and not the cause of
another’s death. When the victim is not proved to have died as a result of the injuries received in
the incident his dying declaration cannot be said to be the statement as to the cause of his death
or to any of the circumstances which resulted in his death. This shown in the case of Rata Gond
v State of Bihir air46, where in this case the accused was charged with an offence of murder, the
item of evidence against him were the statements made by the deceased sister who died
subsequently but before the committal proceeding. the supreme court of India held that ‘for
dying declaration to be admissible it should be made by the deceased person as to the cause of
his death or any other circumstances regarding to the cause of his death. Basing on the case in
hand, the statement made by the sister does not relate to her death, on the contrary the statements
to the death of her sister. Therefore, the statements do not fall under meaning of dying
declaration. In the case of Mohamed Warsama v. R47, the deceased had made a series of dying
declaration, and had in them stated the cause of death of another deceased. The court held that
these were not admissible as related to the other deceased, as a dying declaration has to relate to
the cause or circumstances leading to the death of the deceased and not any other person. Also in
the case of Swaming v Empire48 Declaration it should point the circumstances of his death it is
more based on admissibility because it point relevancy.

4.7 Corroboration by Independent Evidence

Although the law does not strictly require corroboration of a dying declaration, courts strongly
prefer corroborative evidence as a matter of judicial practice. Corroboration provides assurance
that the declaration is truthful and accurate. In Pius Jasunga s/o Akumu v R.49 the court stated
that it is generally unsafe to convict solely on a dying declaration without corroboration unless
the court is fully convinced of its truth. Also in the case of R vs Mohamed shedaffa and three

46
(1959) SC 18
47
(1956) 23 EACA 576
48
(1939) VOL .I
49
Ibid
12
others50 where the court held by saying that ‘ It is a rule of practice a dying declaration requires
collaboration before it can be acted upon. Corroboration may take the form of medical evidence,
eyewitness testimony, circumstantial evidence, or the conduct of the accused. In case of R v.
Yusuph bin Ismail.51 A dying declaration was admitted where the victim identified the accused.
The court held the declaration was reliable as the victim was lucid and had no motive to lie. The
High Court of Tanzania has consistently applied this principle. In Republic v Hassani s/o
Ngoya.52 the court acquitted the accused after finding that the dying declaration was
uncorroborated and that the surrounding circumstances did not inspire confidence.

4.6 Deceased Ample Opportunity of Observation (Identification of the Accused by the

Deceased)

Where a dying declaration made by deceased person was able to identify by seeing the accused
person in the night though there is no light, as the assailant, courts exercise extreme caution.
Identification evidence is particularly susceptible to error, especially where conditions were
unfavourable. In Abdalla bin Wendo & Another v R.53 the court emphasised the need for caution
where identification is made in difficult conditions such as darkness, sudden attack, or extreme
distress. Courts consider factors such as lighting, distance, duration of observation, and prior
familiarity with the accused. The High Court of Tanzania elaborated on this approach in
Republic v Mwiburi Muriro Hamis Michael Mngururi & 2 Others.54 In that case, the court
carefully examined whether the deceased had a clear opportunity to recognise the assailants
before making the dying declaration. The court accepted the declaration only after finding strong
supporting evidence from eyewitness testimony and surrounding circumstances. The decision
illustrates that where identification through a dying declaration is supported by independent
evidence, the declaration gains significant reliability. Conversely, where identification conditions
are weak, corroboration becomes indispensable. In case of R v. Abdallah bin Mfaume.55 The
court admitted a dying declaration where the deceased identified the accused, who was known to
them. The identification was considered credible.

4.7 Mode and Manner of Recording the Declaration

50
[1984] TLR 92
51
(1971) HCD 134
52
(2009) TZHC
53
(1953) 20 EACA 166
54
[2022] TZHC
55
(1969) HCD 145
13
The manner in which a dying declaration is recorded also affects its reliability. Declarations
recorded by a magistrate or medical officer, preferably in question-and-answer form, are
accorded greater weight than oral statements narrated by witnesses. According to Sarkar on
Evidence.56 properly recorded written declarations reduce the risk of misinterpretation or
distortion. Oral declarations are admissible but are treated with greater caution because they
depend on the accuracy and honesty of the witness recounting them. In Tanzania, courts consider
how dying declarations are recorded key points are record in the declarant`s own words if
possible, ideally, get it signed or witnessed, focus is on accuracy and reliability. In case of R v.
John Mwasumbi.57 The court discussed how dying declarations should be recorded. Ideally, the
statement should be recorded verbatim, in the declarant`s own words, and signed if possible.

CONCLUSION

A dying declaration is a powerful yet delicate piece of evidence. Its admissibility under section
34(1) of the Evidence Act, is firmly established, but its reliability depends on surrounding
circumstances. Factors such as mental fitness, voluntariness, proximity to death, consistency,
corroboration, identification conditions, and proper recording lend strength and reliability
assurance to dying declarations. Courts must continue to exercise caution to ensure that dying
declarations promote justice rather than cause miscarriages of justice, Hearsay evidence is that
such evidence is admissible only where the law has allowed the same to be admitted to do
otherwise would surely open the doors for un-called for injustices Where the circumstances in
which the declaration was given make it unsafe to convict without further proof corroboration
such as direct or circumstantial evidence is necessary.

REFERENCES

Constitution of the United Republic of Tanzania, 1977.

56
Ibid
57
(1983) TLR 59 (HCD)
14
STATUTES

Evidence Act, Cap 6 R.E. 2023

CASES

Pius Jasunga s/o Akumu v R (1954) 21 EACA 331.

R v Woodcock (1789) 1 Leach 500.

R v Eligu s/o Odel (1943) 10 EACA 90.

R v Ramazani bin Mirandu (1934) 1 EACA 107.

Choge v Republic [1985] KLR 1.

R v Muyovya bin Msuma (1939) 6 EACA 128.

Abdalla bin Wendo & Another v R (1953) 20 EACA 166.

Republic v Julius Mabizi Maswi (Criminal Session Case, High Court of Tanzania, 23 March
2021).

Republic v Hassani s/o Ngoya (Criminal Session Case No 70 of 2007, High Court of Tanzania,
10 July 2009).

Republic v Mwiburi Muriro Hamis Michael Mngururi & 2 Others (Criminal Case, High Court of
Tanzania, 8 December 2022).

R v. John Mwasumbi (1983) TLR 59 (HCD)

R v. Abdallah bin Mfaume (1969) HCD 145

R v. Yusuph bin Ismail (1971) HCD 134

R v. Mohamed Chacha (1981) TLR 166 (HCD)

R v. Hssan bin ismail (1974) HCD 134

R v. Omary bin Mussa (1980) TLR 57(HCD)

R v. Abdallah bin Mfaume (1969) HCD 145

BOOKS

Cross and Tapper on Evidence (13th edn, OUP 2018).

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Sarkar, Law of Evidence (18th edn, LexisNexis).

Spencer, J. R. (2008) Hearsay Evidence in Criminal Proceedings. USA: Hart Publishing

Raymond Emson, Evidence (2ND Ed, palgrave Macmillan, 2004

Emson, R. (2004) Evidence. 2nd (Ed) New York: Palgrave McMillan

John woodruff& syed Amir Ali’s, Law of Evidence (17th ed Newdelhi Butterworhs,2001)

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