CHAPTER NINE

MODES OF COMMUNICATION

ORAL AND DOCUMENTARY EVIDENCE

The law of evidence recognizes two important means of communication or proof

of facts in issue and relevant facts. The evidence may be transmitted to the court by
oral testimony or by the presentation of a document to the court for perusal and
construction.

However, there are three exceptions which enable the court to establish facts by
special means, namely;

First, as we have seen in the immediately preceding chapters, formal admissions

are made with deliberate purpose of dispensing with proof but informal admissions
are usually the subject of proof. Where a fact in issue or relevant fact is formally
admitted by a party, the court comes to a conclusion that the particular fact is
established and oral or documentary evidence is required to prove its existence or
non-existence.

Secondly, the court may take judicial notice of a fact which means that the judicial
tribunal will accept the truth of a fact without proof. On the ground that it is within
the knowledge of the tribunal.

Thirdly, the effect of some presumptions, as we shall see in chapter eleven is to

establish a fact without any or complete proof, and they thus operate as a
substitution for evidence. In this chapter we shall be concerned with the two
important modes of proof—oral and documentary evidence.

I. ORAL EVIDENCE –PROBATIO VIVA

Oral evidence is defined by S.3 (1) of the U.E.A as “all statements which the court
permits or requires to be made before it by witnesses in relation to matters of fact
under inquiry.

S.57 of the U.E.A declares that all facts, except the contents of documents, may be
proved by oral evidence. It has been pointed out that this section is not happily
worded because contents of a document may be proved by oral evidence under
certain circumstances. For instance when evidence of their contents is admissible
as secondary evidence. Oral evidence which is trustworthy is sufficient without
documentary evidence to prove a fact.

The superiority in permanence and trustworthiness of documentary evidence to

oral evidence has been noticed a long time ago. The possibilities of misconception,
or false relation of what never took place, the fact that human memories tend to
decay with the passage of time, imperfect reconciliation and willful
misrepresentation all contribute in the inferior status of oral evidence. Moreover,
the fact, that percipients witnesses will certainly die, makes oral evidence
ephemeral and of no lasting value. Writing is therefore used to perpetuate the
memory of what is written down and so to furnish a permanent proof of it-hence
the superior status of documentary evidence.

Te nature of oral evidence which should be produced before the court is

prescribed under S.58 of the U.E.A. The requirement is that oral evidence in all
cases must be direct. If it refers to a fact which must be the evidence of a witness
who says he saw it. It refers to a fact which could be heard it must be evidence of a
witness who says he heard it. If it refers to a fact which could be perceived by any
other sense it must be the evidence of a witness who says he perceived by any
other sense or in that manner. If it refers to an opinion or to the grounds on which
that opinion is held, it must be the evidence of a person who holds that opinion on
these grounds. However, the opinion of experts expressed in any treatise
commonly offered for sale and the grounds on which such opinion are held, may
be proved by the production of such treatise if the author is dead, cannot be found,
or has become incapable of giving evidence, or cannot be called as a witness
without an amount of delay or expense which the court regards, as unreasonable.
Moreover, if oral evidence refers to the existence or condition of any material,
other than a document, the court may, if it thinks fit, require the production of such
material thing for its inspection.

This section is based on the best evidence rule and the rule against hearsay.
The leading statement of the best evidence rule is that of Lords Hardwicke he said
that “ the judges and sages of the law have laid it down that there is but one
general rule of evidence, the best that the nature of the case will allow’. This
section therefore, subject to the provision, excludes opinion given at second-hand.
The general rule regard to hearsay is that it is not admissible as we have seen in
chapter three of this book.

Derivative or second-hand oral evidence is excluded because of its infirmity as

compared with its original source. Written information is not direct oral evidence
within the meaning of this section. If it is desired to make the matter contained in it
as evidence, a person who can directly testify to such matter be called to give oral
evidence. A report of a speech in a newspaper is not admissible in evidence to
prove the speech. It is necessary to produce the person who made the speech or the
person in whose presence the speech was made and who had sent the report to be
published in the newspaper.
Under this section in a trial for murder of the deceased by stabbing with a spear
only oral evidence which may be received are: by a witness who actually saw the
deceased stabbed; of a witness who heard the deceased shout the accused was
killing him; of an eye witness who was present when the deceased and the accused
picked up a quarrel; and of a witness who saw the deceased’s corpse on the
compound. The evidence of witnesses who hear anything about the murder,
incident from the above original percipients would be inadmissible. Thus the
evidence of x that y told him he saw the decease being stabbed is inadmissible. The
evidence of Pand Q told him that he heard the deceased scream with the name of
the accused is also inadmissible. Evidence by a father that his son reported the
events of the murder to him would also be inadmissible.

The first provision is a departure from the rule of English law under which
medical and other treaties are not admissible whether the author is a live or dead.
Under the provision any scientific text book commonly offered for sale is
admissible in evidence if the author is dead, cannot be found or is slow or
expensive to call to five evidence.

The second provision enables that court to require the production of a

material thing for its inspection; it gives the court the discretion to prefer real
evidence. Real evidence covers the production of material objects for inspection by
the judge or assessors. If the condition of a material object is in issue, as where it is
alleged that an address made by Mr. Sebalamu does not fit, or the left leg of the
plaintiff has been amputated or that the plaintiff is deaf, the dress and the plaintiff
may be produced to enable the court to form its opinion on the matter. Real
evidence in this sense therefore includes the appearance of persons, the view of the
court if it visits the locus in quo of the land whose boundary is contested, the
playing of tape-recording in courts, and when documents are produced in courts as
chattels and not for the proof of their contents.

Under section S.163 of the Uganda act, the court has power to order the production
of any document or things; and neither the parties nor their agents shall be entitled
to make any objection to such order. This general power is necessary in order to
enable the court to discover or obtain proper proof of relevant facts and facts in
issue.

II. DOCUMENTARY EVIDENCE

a) Definition

S.3 of the U.E.A defines documentary evidence as all documents produced for the
inspection of the court. The definition given to the word “document” is very wide;
it means and includes 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, for the purpose of recording that matter. The Tanganyika definition is
wider and more exhaustive. Under document means and includes any writing,
handwriting, type writing, printing, Photostat, photograph and every recording
upon any tangible thing, any form of communication or representation by letters,
figures, marks or symbols or by more than one of these means which may be used
for the purpose of recording any matter provided that such recording is reasonably
permanent and readable by sight. There appears to be no exact definition of a
document in English law. Nokes defines a document as any substance on which
writing, figures or other symbols are marked. It is immaterial what substance is
used and whether the marks are written by hand, printed, type written, engraved,
embossed or otherwise delineated, provided that result is capable of being used in
evidence. The Tanganyika definition seemed to have been greatly influenced by
Noke’s definition.

Whether an object is a thing or a document within the above definitions will

depend on the purpose for which the object is tendered in evidence. A substance
bearing writings may be proved either to show its existence, identity, situation at a
particular time or to prove its literary content. For instance if the question is
whether Wako travelled from jinja to Kampala without a bus ticket, the ticket in
this sense may be regarded as a thing and a document. What Wako is required to
establish is the fact that he had a bus ticket as a thing.

On the other hand, if the issue is whether or not the bus conductor refunded a
balance of shs.95/= which he indicated at the back of the ticket he gave to Wako on
his representation, of shs.100/= note to pay for the journey from jinja to Kampala,
the ticket will be tendered in evidence to show the handwriting and statement b7y
the bus conductor at the back thereof that he had Wako’s balance of shs.95/=. In
this sense the ticket is a document subject to the rules governing the production of
documents in court. Again if the question is whether Okwera stole a book, the
book tendered in evidence may be regarded as a thing and not a document.
However, it should be noted that there is an undefined borderline between
documents and things. If the question in issue is the wording of a ticket, book, or
deed the object inspected by the court is regarded a document.

b) Primary and secondary evidence

The general rule under S.59 of the U.E.A is that the contents of documents may be
proved either by primary or secondary evidence.

Therefore the content of a document may be proved either by the production of the
document itself which is called primary evidence or by copies or oral accounts,
which are called secondary evidence. This section lays down that the content of a
document may be proved either by primary or secondary evidence. The rule
suggests that there is no other method allowed by law to prove documents. Primary
evidence is the evidence which the law requires to be given first. Secondary
evidence is evidence which may be given in the absence of the better evidence
which the law requires to be given first. Primary and secondary evidence are
defined in the next two sections.

Indeed, the general rule under the common law is that a party relying on
words used in a document for any purpose other than for identifying it must, as a
general rule, produce primary or secondary evidence of its contents. Cross has
stated that this is the most important survival of the best evidence rule. A good
example of primary evidence is the original document and secondary evidence is
the exact copy thereof. In MacDonnell V Evans(1852),11 C.B 930, a witness for
the plaintiff was asked in cross-examination whether a letter of his which was
produces was written in reply to a letter charging him with forgery. The last
mentioned letter was not produced and the question was disallowed because it
assumed that there was a document in existence which should have been proved by
the production of the original.

In Augustien V Challis (1847) 1 Exch. 279, a landlord who was called as a

witness made reference to a lease, which was not produced as documentary
evidence in court. It was held that the evidence of the landlord was inadmissible
because the moment it appeared that there was a lease, he could not speak about it
content without producing it.

The general rule under S.59 only applies to cases in which direct reliance is
placed on the words used in a document. In R V Holy Trinity, Kingston-Upon-
Hull (inhabitants) it was held that the fact that a pauper was a tenant in a parish
could be proved without reference to the original lease, and the value of the
premises could also be proved without reference to the lease. Therefore the general
rule regarding primary and secondary evidence could be dispensed with. The rule
applies the moment reliance is placed upon the contents of the document, but it
does not prevent reference being made to the terms of the document for the
purpose of identifying the document.

Primary documentary evidence is defined under S.60 of the Uganda Act.

Primary evidence means the document itself produced for the inspection of the
court. Where document is executed in several parts each part is primary evidence
of the document. Where a document is produced in counterpart, each counterpart
being executed by one or some of the parties only, each counter is primary
evidence as against the parties executing it. Where a number of documents are all
made by one uniform process, as in the case of printing, lithograph or photography,
each is primary evidence of the content of the rest; but where they are copies of a
common original; they are not primary evidence of the contents of the original.

The cardinal rule governing documentary evidence is that, unless there are special
circumstances, a document can only be proved by primary evidence she alone
signs as defined in S.60 ,above . a document is executed in several counter parts
when each party to the transaction wishes for the sake of convenience to have a
complete document in his possession. To affect this, the document is written as
many times over as there are parties and each document is signed or sealed and
executed by the parties as the case may be. In such a case, any one of such
documents may be used as primary evidence of the contents of the documents. For
instance, if Kato and Waswa who have jointly inherited a piece of land mailo land
on Kampala road agree to sell the land to Patel and each of Kato, Waswa and Patel
want to have a complete document of the agreement of sale in his possession, the
document will be written or typed three times so that each keeps an original. If
each of these three has an original copy of the document in his possession after it is
executed, any one of them may be produced as primary evidence of the content.

A document is produced in counterpart when there are two parties to the

transaction. Thus if Grace and Jonathan promised to Mary each other in writing,
the document may be copied out twice. Grace alone signs one document and
Jonathan signs the other. Grace then hands to Jonathan the copy she alone signed
and vice versa. Then as against Grace the document is primary evidence, while as
against Jonathan the document signed by him is primary evidence. Therefore the
rule is that where a document is executed in counterpart, each counterpart being
executed by one or some of the parties only, each counterpart is primary evidence
as against the parties executing it and secondary evidence as against other parties.

The provisions of S.62 of the I.E.A, similar to S.60 of the U.E.A was
discussed in the DPP (Tanganyika) V R Nathan (1966) E.A 137. The respondent
was the proprietor of a travel agency with a branch in Zanzibar and in Dar-es-
salaam. The Zanzibar branch was approved by I.A.T.A and was authorized to issue
international tickets and the Dar-es-salaam branch was not approved and therefore
incompetent to issue international tickets. The respondent was charged and
convicted by the Dar-es-salaam district court on three counts of forging with intent
to deceive. It was not in dispute that the respondent in each case4 issued the tickets
from Dar-es-salaam office and affixed the Zanzibar office stamp.

The forgery complained of was the use of the Zanzibar office stamp on tickets
issued from Dar-es-salaam for the purpose of creating the impression that the
tickets were issued from Zanzibar office. At the trial the prosecution called a
witness who testified that the Dar-es-salaam office was not approved by I.A.T.A as
it did not appear in a volume of lists of agents which he produced in court. On
appeal the high court held that this loose leaf cyclostyled volume was not an
original document and that as no circumstances had been established which
entitled the prosecution to give secondary evidence, the volume was inadmissible.
It was further held that the fact that the respondent’s Dar-es-salaam office did not
appear on the agency list could not be proved and the appeal allowed. On further
appeal to the court of appeal New bold V.P stated as follows;

“by S.64 of the Indian evidence act as applied to Tanzania, a document must
,except in the cases referred to in S.65, be proved by primary evidence. By
S.62 primary evidence means that the document itself. That section also
provides that where a number of documents are all made by one uniform
process such as printing each is primary evidence of the contents of the
original. The document produced in this case is a loose leaf volume
apparently produced by a process capable of making many other documents
uniform with the leaves of the volume produced.

The chief justice stated that the document was clearly not an original nor
was it authenticated in any way. As regards the authentication it was
produced by the secretary to the I.A.T.A. agency investigation board for the
east Africa as the “official list of the agency” for Africa and it purports on
its face to be the I.A.T.A agency list. It is not clear what further
authentication is necessary. As regards the question of it being a copy and
not an original, it is not clear of what the chief justice considers it to be a
copy. There is no suggestion that there exists a signed or certified original
that it is extremely unlikely that any such signed or certified original exists
or ever existed.
 There are probably a considerable number of precisely similar documents
in existence all made by a uniform process and all therefore originals. It
may well be that in one or more countries throughout the world there is in
one or more countries throughout the world there is an officer whose duty it
is to amend and keep up to date a particular volume. But by that very fact
the other documents are not copies of particular documents, do the other
documents cease to be originals- they continue to be originals of the
particular edition of the document. From time to time, doubtless cyclostyled
leaves with the amendments incorporated are sent to the holders of these
volumes so that these leaves can be inserted in place of the existing relevant
leaves. It is for this reason, probably, that the documents are prepared in
loose leaf form. These amended cyclostyled leaves are themselves originals
and it is almost certain that the manuscript amended copies of the leaves are
destroyed as no longer being of any value once each amended leaf in
cyclostyled form has been produced. Be that as it may, there is no evidence
that this document is a copy of any other document nor do we see any
reason to assume that such is tha position. For these reasons we are, with
respect, unable to agree with the chief justice that the document was not
properly proved and that there was no evidence that Dar-es-salaam office
was neither approved nor listed.

Secondary evidence of documents, which may be produced in evidence under

circumstances specified in S.6 includes the following; copies made from the
original by mechanical process which in themselves insure the accuracy of the
copy and copies compared with each copy; copies made from as against the parties
who did not sign and execute them; oral account of the contents of a document
given by some person who has himself seen it.
All this secondary documentary evidence are specified under S.61 o9f the U.E.A.
As pointed out by Morris the sections of the U.E.A and the Indian Act contain the
phrase secondary evidence “means and includes” and the list that follows is not
apparently exhaustive. The Kenya and Tanganyika Acts omit the words “means
and are presumably intend that the lists are not exhaustive.

In the illustrations to S.63 of the I.E.A a photograph of an original is

secondary evidence of its contents even if the two have not been compared, as long
as it is established that the document photographed was the original. A copy of a
letter made by a copying- machine is secondary evidence if it is shown that the
copy was made from the original. A copy transcribed from a copy but afterwards
compared to the original is secondary evidence; but a transcribed copy not so
compared is not secondary evidence. Either an oral account of a copy compared
with the original not an oral account of a photograph or machine copy of the
original is secondary evidence of the original. Therefore it is only an oral account
of the original by a witness who actually saw the original which is secondary.

This clause does not necessary seem to mean that a witness who is called to give
evidence as to a lost document must have himself read the document. He would be
a competent witness if, having physically saw the letter which was read and
explained to him by Okot’s brother Obua, Omara may give secondary evidence of
the content of the letter if it is in issue. Indeed, generally secondary evidence of a
document lost and which cannot be traced can be adduced in two ways; by oral
evidence of a person who saw the original or who was present when the original
document was executed or by a certified copy of the original document.

S.63 enumerates seven exceptional cases in which secondary evidence is

admissible, namely; first when the original is shown or appears to be in the
possession or power of the person against whom the document is sought to be
proved or of any person out of reach of the court or not subject to the process of
the court; or of any person legally bound to produce it and due notice was given to
him to produce the evidence but does not produce it,

Secondly, when the existence, condition or content of the original is shown or

appears to be in the possession or power of the person against whom the
documents is sought to be proved or by his representative in interest.

Thirdly, when the original has been destroyed or lost or is in possession or power
of any person not legally bound to produce it after reasonable notice or when the
party offering evidence of its contents cannot, for any other reason not arising from
his own default or neglect ,produce it in a reasonable time. In other words
secondary evidence of contents of document cannot be admitted without the lost or
destruction of the original first being accounted for. There must be evidence on
record to show that the document has been lost and to prove the loss of the
document evidence of diligent search is necessary.

Fourthly, when the original is of such a nature as not to be easily movable. This
clause covers things not easily moved, such as fixtures or very heavy stones or
timber; for example noti9ces pointed on the walls ,tablets in buildings, tombstones,
manuments or marks on boundary trees. Secondary evidence is admitted here on
account of great inconvenience and impracticability of producing the original.

Fifthly, when the original is a public document within the meaning of S.72. This
clause is intended to protect the originals of public records from the danger to
which they would be exposed by possible constant production in evidence. S.72
provides that a document is public if it forms the records of acts of the sovereign
authority, official bodies and public officers of Uganda or a foreign state.
Sixthly, ,when the original is document of which a certified copy is permitted by
this Act or any other law in force in Uganda to be given in evidence.

Finally, when the originals consist of numerous accounts or other documents

which cannot conveniently be examined in a court and the fact to be proved is the
general result of the examination and collation of many documents and the
documents are such as cannot be conveniently examined in court, evidence may be
given as to the general results of these documents by a person who has examined
them and who is skilled in the examination of these documents. This clause was
discussed in D’sa V R and Chawhan V R (1957 E.A 6270. Two bank clerks were
convicted for fraudulent false accounting and stealing from their employer. At the
trial a bank inspector gave evidence for the Crown of his inspection of books of
accounts of the bank. The appeals against conviction were principally on the
ground that neither the original accounts referred to in the inspectors’ evidence nor
copies were produced in evidence and since the inspectors’ evidence was
secondary they were inadmissible. It was argued for the Crown, inter alia, that the
secondary evidence was admissible under S.63(g) .McKisack C.J stated that for the
evidence to be admitted under S.63 the following requirements had to be satisfied,
namely; the witness had to be skilled in the examination of the documents in
question; the witness himself must have examined the documents; the document
must consist of numerous accounts or other kinds of documents not capable of
being conveniently examined by the court; and the secondary evidence must be for
the purpose of proving the general result of the whole collection. He held that these
requirements were satisfied and the secondary evidence was rightly admitted.

Fromm the Indian authorities it would seem that if a copy of a document is

admitted in evidence in the court of first instance without any objection, no
objection can be allowed to be taken on appeal as to its admissibility.” The object
of the rule is obvious, for , if an objection is taken in the first court , the party
producing the copy can ask for an adjournment in order to get the original or else
to give evidence justifying the admission of secondary evidence”.

S.64 of the Uganda Act provides that secondary evidence referred to in S.63
shall not be given unless the party proposing to give secondary evidence has given
previous notice to the party in whose possession or power the document is or to his
advocate, previous notice shall, however, not be required in six cases;

When the document to be proved is itself a notice ; when the adverse party must
know from the nature of the case that he will be required to produce it; when it
appears or it is proved that the adverse party has obtained possession of the
original by fraud or force; when the adverse party or his agent has agent has the
original in court; when the adverse party has admitted the loss of the document;
and when the person in possession of the document is out of reach of or not subject
to the process of the court. Notice is required to give the opposite party a sufficient
opportunity to produce the document and possibly to secure the best evidence of its
contents; but such is not necessary in the above six cases and when the court
considers it fit to dispense with it.

c) Proof of signatures, execution and attestation of documents

Proof of signature and hand writing of documents tendered in evidence in court is

provided for under S.65. if a document is alleged to be signed or to have been
written wholly or in part by any person, the signature or the handwriting must be
proved to be in that person’s handwriting must be proved to be in his hand writing
this section is based on the requirement that a person who makes an allegation
must prove it.
The law requires handwriting and signatures to be proved in an effort to establish
the authenticity of the document produced in evidence. The section does not
restrict the kind of proof which may be given; the proof may be by statement,
opinions of experts and non-expert handwriting evidence or by circumstantial
evidence, or by judicial comparison and inspection of the handwriting in issue and
any other handwriting or signature by the same already admitted or proved before
the court. In R.E.W Pope V R (1960) E.A 132, the appellant was convicted on
three counts with fraudulent false accounting and theft. the evidence against the
appellant with respect to one pay sheet was that the hand writing thereon was his
and that he drew the impress cash to meet the sums shown as payable hereunder.
On appeal it was argued that a very high proof of hand writing was required under
S.73 of the I.E.A before it can be used for the purpose of comparison. 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 tactically admitted
the fact there had been no failure to direct the jury thereon. The witnesses who
stated that the report was in the appellant’s handwriting were not cross-examined
by the appellant and his silence constituted a tacit admission.

Under S.66, if a document is required by the court to be attested, it shall not

be used as evidence until one attesting witness at least has been called for the
purpose of proving its execution there is one available. This section stops proof of
execution of a document requiring attestation otherwise than by the evidence of an
attesting witness if available.

If no such attesting witness can be found, it must be proved that the

attestation of one attesting witness at least is in his handwriting. In other words if
an attesting witness is dead or cannot be found after diligent search two things
must be proved; the signature of one attesting witness and the signature of the
executants.

The admission of a party to an attested document of its execution by himself

shall be sufficient proof of its execution as against him even if it is a document
required by the law to be attested. The effect of this section 68 is to make the
admission of the executants a sufficient proof of the execution of a document in
written statements, it is unnecessary for the mortgages to adduce any evidence as
to the execution of the document.

It is provided in S.69 that if the attesting witness denies or does not recollect
the execution may be proved by other evidence. Thus where an attesting witness
has denied the knowledge of the matter, the execution of the document may be
proved by other independent evidence. This section only operates if the attesting
witness denies or does not recollect the execution of the document. According to
S.73 where the law does not require attestation for the validity of the document, it
may be proved by admission or otherwise as though no attesting witness existed.

As we have seen, in the Pope’s cases supra, S.71 allows the court to compare
the disputed signatures, writing, seal or finger impressions with those which have
been admitted or proved to the satisfaction of the court. For this purpose the court
may direct any person present in court to write any words or figures to enable the
court to compare the words so written with the disputed words or figures. A court
may rely upon its own comparison of the signatures, writing, or seal. A court can
under this provision call upon the accused to give his writing in court and make it
available for comparison by experts and this also applies to finger impressions.

d) Public documents
The evidence Act classifies documents into two groups, namely; public and private
documents. Public documents declared under S.72 includes documents forming the
acts or records of the acts of the sovereign authority; of official bodies and
tribunals and of public officers in the legistative,judicial and executive organs of
government, whether of Uganda or any other part of the commonwealth or of a
foreign state. Public documents also include public records of private documents in
Uganda. All documents other than those specified above are private. S.72 (b)
seems to refer to public records of wills, land titles and registration of births,
deaths and companies. Contracts, leases, mortgage deeds and any written private
agreements which are not kept in public records are private documents.

S.74 provides the means of proving public documents which any person has
a right to inspect. Every public officer who has the custody of a public document
which any person has a right to inspect, must give the document to that person on
demand and on payment of the legal fees. There must be a written certificate, land
titles and registration of births, deaths and companies. Contracts, leases, mortgage
deeds and any written private agreements which are not kept in public records are
private documents.

S.74 provides the means of proving public documents which any person has
a right to inspect. Every public officer who has the custody of a public document
which any person has a right to inspect, must give the document to that person on
demand and on payment of the legal fees. There must be a written certificate at the
foot that the copy given to him is a true copy. The certificate must be dated, bear
the names and title of the officer and shall be sealed wherever required by the law
to be sealed. Such copies so certified shall be certified copies.
 Certified copies of public documents may be produced in proof of the
contents of the public documents or parts thereof of which they purport to be
copies. Therefore public documents are admissible as an exception to the rule
against hearsay. Certified copies of them are admissible against the world at large.
As stated by Nokes, the reception of some types of public document was common
long before the formulation of the rule against hearsay. Public entries were given
in evidence from the C 18th. Expedience justifies this exception to the rule against
hearsay. It is obviously inconvenient that the persons responsible for public
documents should give evidence in support of their contents. His absence from
office may disorganize public business and affairs. The special circumstances
which give authenticity to the entries in most public documents are; presumption
of irregularities; public officers are expected to work conscientiously and errors on
matters which are known to the public may be easily exposed.

S.76 specifies the mode of proof of certain public documents .Acts, orders or
notifications of the government or the district administration may be proved by the
records of the department certified by the heads of those departments respectively;
by any document purporting to be printed by an order of the government; by
published laws or abstracts or copies purporting to be printed by an order of the
government. The acts of the executive or the proceedings of the Uganda legislature
or of a foreign country may be proved by journals published by their authorities or
a copy certified under the seal of the country or by recognition therefore in some
laws of Uganda. For instance the proceedings of the legislature of Uganda and acts
of the executive may be proved by the production in court of the Uganda Hansards,
or the Uganda Gazette, or government notices. Proceedings of a municipal body in
Uganda may be proved by a copy of such proceedings certified by the legal keeper
or a printed book purporting to be published by the authority of the body.
 Public documents of any other class in a foreign country may be proved by
the original or certified copy, with a certificate under the seal of a notary public, or
of a foreign service officer that the copy is duly certified by the officer who has the
legal custody of the original document, and upon proof of the character of the
document according to the law of the foreign country.

e) Presumption as to documents

When a private or public document has been offered in evidence, certain

presumptions may arise in respect of its authenticity. These presumptions are
enumerated in Ss 77- 89 of the U.E.A. these sections are founded upon the
principle that all acts are presumed to be rightly done (omnia praesumuntur rite
esse acta). They are also based on the understandings that as years pass by; those
who can personally testify to the attestation and execution of documents pass
away. If strict proof of attestation ,execution and handwriting were insisted upon, it
would after a generation or two become impossible to suppose that documents
which are carefully kept for a long time are genuine.

It is provided in S.77(1) of the Uganda Act that the court shall presume
every document purporting to be a certificate certified copy or other
document ,which is declared by law to be admissible as evidence of any particular
fact, and which purports to be certified by any officer in Uganda to be genuine. It
must be substantially in the form and purport to be executed in the manner directed
by law. The court shall also presume that every officer by whom such document
purports to be signed or certified held the post claimed in the document. For
instance if kaija gets married to matama before the D.C Toro at fort portal and the
marriage certificate is signed by Mr. Idoro held the post of district Commissioner
Toro when he signed the document.
 Presumption as to documents produced as records of evidence is covered by
S.78 of the Uganda Act. Whenever a document purporting to be a record of
evidence given in a judicial proceeding or before a judicial officer is produced
before the court, the court may presume that such document is genuine and that the
evidence recorded was evidence actually given by the witnesses and duly taken. It
was stated in Magoti V R (1953) 20 E.A.C.A 232 that when a disposition made in
an earlier proceeding is admitted in evidence, there is presumption of genuineness
of the document and the circumstances under which it was taken, so that further
proof of the document would only be required in the rear case where some
objection is made to the signature or accuracy of the statement. The presumptions
to be raised under this section are considerably wider than those under S.79. They
embrace not only the genuineness of the document, but that it was duly taken and
given under the circumstances recorded in the document. The presumption here is
not conclusive. They are rebuttable. Where for instance a confession is dying
declaration is reduced in writing by a magistrate and tendered in evidence before
the high court, the court will presume that the confession or dying declaration was
duly made and taken or recorded in the circumstances indicated in the deposition.
They can be tendered in evidence without the magistrate who recorded them being
called to prove that they are authentic. When a deposition is taken in open court by
a magistrate there is a degree of publicity and solemnity, which provides a
sufficient guarantee for the presumption that everything was formally, correctly
and honestly done. Thus the record of evidence during the course of which a
witness has committed perjury is evidence of this offence, and oral evidence of
someone who was present during the trial need not be given ,as was the case in R
V Alibhai Mitha(1945) 12 E.A.C.A 54.
 Provisions for the presumptions of authenticity of gazettes, journals,
newspapers and acts of parliament are made in S.79 of the Uganda act. The court
shall presume the genuineness of every document purporting to be the gazette,
newspaper, journal or to be a private act of parliament printed by the government
printer and of every document purporting to be a document directed by any law to
be kept by any person if such document is kept substantially in the form required
by law and is produced from the proper custody.

When a document purporting to be one which by the law in force in United

kingdom or the Republic of Ireland would be admissible in a court of law without
proof of the seal stamp or signature authenticating it, or is of judicial and official
character, it is presumed under S.80 of the Uganda Act that the seal, stamp,
signature or the judicial or official character claimed are genuine and the judicial
and official character was held, and the document would be admissible for the
same purposes as it would be in England.

This section reproduces some sections of a similar English statute making certain
documents admissible throughout the commonwealth and it lays down rules of
both presumption and admissibility. Under it court must presume that the stamp,
seal or signature are genuine and that the person who signed it held the office
claimed therein. At common law when a document of such a character that its
preservation and custody was of concern to the public at large, the production of
the original was either executed or disapproved by the court, and its copy was
admissible in evidence. This section was therefore intended to put the admissibility
of copies of public documents on a clearer and more settled footing. The following
are some of the documents which can be proved by certified copies in England-
birth,marriage,death,titles,companies,copyright,patent newspaper proprietor
registers and registers of similar nature. We also have these registers in East
Africa.

In accordance with S.81 of the Uganda Act the court shall presume that
maps or plans purporting to be made by the authority of government were so made
and are accurate. Under this section it is presumed that in the preparation of maps
and plans for public purposes that government would appoint competent officers to
execute the work and that such officer would do their duty properly and
conscientiously. This section does not deal with private maps; the maps must
purport to have been made by the authority of government such as the Uganda
Atlas prepared by the department of lands and survey.

S.84 of the Uganda Act provides that the court shall presume the
genuineness of every book purporting to be printed or published under the
authority of the government of any country and to contain any of the laws of that
country. This section should be read with S.36 which makes admissible statements
as to any law and decisions contained in officially printed books of any country.
The section dispenses with the proof of the genuineness of authorized books of any
country containing laws and judicial decisions.

Presumptions relating to certain categories of private documents are covered

in S.83 of the U.E.A. the court shall presume that private documents purporting to
be executed out of Uganda were so executed and duly executed in the following
cases;

First in case of a document executed in the United kingdom, if it purports to be

authenticated by a notary public under his signature and seal of office;

Secondly if the document is executed in any country of the commonwealth in

Africa and purports to be authenticated by the signature and seal of a mayor of a
town, permanent head of government department , a resident District
Commissioner in or of any such country

Thirdly, in case of documents executed in Kenya if it purports to be authenticated

under the hand of a magistrate or head of government department

Fourthly, in case of documents executed in foreign country outside the

commonwealth it must purport to be authenticated by the signature and seal of
foreign service officer of Uganda or a signature and seal of a foreign country or of
nay secretary of state or diplomatic agent in such a foreign country

Finally, in case of a document executed in any part of the commonwealth relating

to property not exceeding in amount or value of $ 200 sterling if there is appended
to such document a statement signed by a magistrate or justice of the peace that
two other persons known to him have severally testified before him that the person
executing such document is known to them.

The court shall presume under S.84 of the Uganda Act 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 or representative of government of
the common wealth was so executed and authenticated. Thus under this provision
the court presume the due execution and authentication of a power of attorney and
to have been executed before shall presume the due execution and authentication
of a power of attorney and to have been executed before and authenticated by a
notary public or any court. A power of attorney includes any instrument
empowering a specified person to act and in the name of a person executing it. A
notary public is an officer who takes notes of everything which may concern the
public; he attests deeds or writings to make them authentic in another country.
 Generally the presumptions covered by Ss.77 to 84 of the Uganda Act are
imperative if the conditions specified therein are established. As soon as a party
desiring the presumption to be raised satisfies the court about the conditions
required by the particular section, the court shall presume the due execution and
authenticity of the document in question. Ss 85 to 89 – apart, of course, from S.88
–covers matters concerning documents on which the courts may in their discretion
draw a presumption. These provisions on the specified presumption are therefore
permissive.

Thus under S.85 the court may presume that any document purporting to be
a certified copy of any record of any country i8s genuine and accurate if the
document is certified in any manner according to which such document is certified
by any representative f any government of the commonwealth for the certification
of judicial records. The court in accordance with S,86 may presume that any book
to which it may refer for information on matters of public or general interest and
any maps or charts produced for inspection was written and published by the
person and at the time and place by whom and at which it purports to have been
written and or published.

S.87 provided that the court may presume that a message forwarded from a
telegraph office to addressee corresponds with a message delivered for
transmission at the office from which the message purports to be sent; but the court
shall not make any presumption as to the person by whom such message was
delivered from transmission. Under this section the court may treat telegraphic
messages received as if they were the original sent with th exception that a
presumption is not to be made as to the persons by whom they were delivered for
transmission. It must be proved that the message had been forwarded from the post
office to the person to whom such message purports to have been addressed. In the
absence of such evidence, the telegram cannot be held to have been proved.

S.88 of the Uganda Act makes provision for another mandatory

presumption. Under it the court shall presume that every document called for and
not produced after notice to produce, was attested stamped and executed in the
manner prescribed by law. Thus when a document is called for and not produced
after proper notice so to do, the court must presume that it was duly attested
stamped and executed in the manner required by law. The section refers only to
attestation stamp and execution of documents and is restricted to cases where
notice to produce document is given to a party. The presumption is against the
person who refuses or neglects to produce a document on notice.

S.89 deals with presumptions relating to ancient documents. Under it when

any document purporting or proved to be thirty years old is produced from a proper
custody, the court may presume that the signature purporting to be in the
handwriting of a person is in the handwriting of that person; and in the case of a
document attested and executed by the persons by whom it purports to be attested.
For the purposes of this section, documents are said to be in proper custody if they
are in the care of a person with whom they would be naturally; but no custody is
improper if it is proved to have had a legitimate origin or if the circumstances of
the particular case are as to render a legitimate origin probable.

For example if Mukasa has been in possession of a mailo land for a long time and
he produces a mailo certificate of title which he got in 1925 showing his title to it,
the custody would be proper under this section. Thus custody of lease by a lesser
or lessee is proper; and custody of a mortgage deed by mortgagor or mortgagee is a
also proper. The object of this section is to facilitate proof of ancient document by
a party who has them in his possession. It is intended to do away with the
insuperable difficulty of proving the handwriting, execution and attestation of
documents in the ordinary way after the lapse of many years by which time the
person who wrote, signed, attested or executed the documents might be dead.
However the presumption allowed by this section is not mandatory, the court may
require the document to be proved in the ordinary manner, because the mere fact
that a document is thirty years old does not necessarily mean that it is genuine.

If there are reasonable grounds for suspecting its authenticity and the party relying
on it fails to satisfy the court of its due execution, there is an end to the document
which must be rejected. As pointed out by Taylor, an ancient deed which has
nothing suspicious about it, is presumed to be genuine without express proof, the
witnesses being presumed dead and if found in proper custody and corroborated by
evidence of ancient or modern corresponding enjoyment or by other equivalent or
explanatory proof, it will be presumed to have constituted part of the actual
transfer of the property therein mentioned because this is the usual course of such
transaction.

If there are circumstances in the case which throw great doubt on the genuineness
of a document more than thirty years old, even if it is produced from proper
custody the court may exercise its discretion by not admitting the document in
evidence without formal proof, and reject it when no such proof is given

f) Exclusion of oral evidence by documentary evidence

The general common law rule is that no evidence in terms of the proof on
dispositive documents and matters required by law to be in writing shall be given
except the document itself or admissible secondary evidence. This sis because the
object of reducing terms of jural relations into writing is to perpetuate the memory
of what is written d0own and so to provide permanent proof of it. In order to give
effect to this principle the document itself must be produced as evidence; and also
in cases where the document purports to be a final settlement of a previous or
protracted negotiation, as in the case of written contract, it is essential that the
document should be treated as final and not varied or contradicted by oral
evidence. If these rules were not observed, the benefits of writing would be lost
with a resultant confusion and endless uncertainties.

The principle under S.90 of the Uganda Act is therefore that when the terms
of a contract or grant or nay 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 or disposition of property of such
matter except the document itself or secondary evidence is admissible

S.90 gives two exceptions to this rule ;first ,when a public officer is required by
law to be appointed in writing and when it is shown that any particular person has
acted as such officer, the writing by which he is appointed need not to be proved
by the writing by which he is appointed need not be proved. Secondly, wills will be
admitted in probate. This section refers equally to cases in which the contract,
grant or disposition is in one document and to cases in which they are contained in
more than one document. Where there are more originals than one, only one
original may be proved.

The illustrations of the principle of this section under the Indian Evidence
Act are interesting and useful. They are as follows; if a contract is contracted in
several letters, all the letters in which it is contained must be proved; if a contract is
contained in a bill of exchange , the bill of exchange must be proved; if a bill of
exchange is drawn in a set of three, only one need be proved. If Mukasa contracts
with Katende in writing for delivery of matoke on certain terms. The contract
mentions the fact that katende had paid Mukasa the price of other matoke
contracted for verbally on another occasion, and oral evidence ids offered that no
payment was made for the other matoke, the evidence is admissible; and A gives B
receipt for money paid by B and oral evidence is offered for the payment, the
evidence is admissible.

The general principle of S.90 is illustrated by the following East African

cases; in Abdulla V Mohammed a wakf of certain property stating therein that the
income from the property was to be divided between her two adopted daughters, it
was held that the extraneous evidence which purported to show that the settler
intended her disposition to be limited to the maintenance and support of the
children was inadmissible. There was nothing on the face of the wakf deed itself to
indicate that such was her intention. The court of appeal denied that there was any
suggestion in Shikha Binti Ali’s Case (1958 E.A 623 that the extraneous evidence
would have been admissible to show that the settler intended that it should be
devoted to their maintenance.

The court of appeal instead quoted with approval a passage in Sheikh

Muhammad Ibrahim V Bibi Biriam(1920), 8 Pat 484 At 489

“ it is true that a valid wakf can be created without; but when the terms of
disposition of property have been reduced to the form of a document, under
S.91 of the Evidence Act no evidence can be admitted in proof of the terms
of such disposition except the document itself or secondary evidence
thereof”.

In Jamnadas and Others V Valji (19610 E.A 615, the respondent and three
others were sued in the supreme court for money due on certain promissory notes.
The appellants were licensed money lenders and a joint guarantee was signed by
Rayani and the respondent. In the proceedings before the Supreme Court no note
or memorandum as required by S.11 of the Kenya Money-Lenders ordinance was
produced, but there was oral evidence that the requisite note or memorandum was
given. The judge dismissed the suit holding, inter alia, that the guarantor was a
borrower within S.11 of the ordinance and since no note or memorandum had been
given as required by law the guarantee was unenforceable against the respondent.
On appeal the issues were whether the burden of proving compliance within S.11
lies on the Money lender and whether such burden can be discharged by oral
evidence.

It was held that the onus was on the money lender to prove that a note of
memorandum in writing conforming to the provisions of S.11 of the ordinance was
made and signed. This onus could be discharged only be production of the note or
memorandum itself and save in cases where secondary evidence was admissible,
oral evidence of such note or memorandum was inadmissible. The court of appeal
agreed with the statement of the privy council in Subramonian V Lutchman
(1922), 50 I.A 77 At P. 84 that their lordships have no doubt therefore that the
memorandum in question was the bargain between the parties and that without its
production in evidence the plaintiff could e establish no claim.

However, as indicated in the illustration to the Indian Act, the document

may not be itself that fact in issue, but it may merely be used as evidence to prove
some fact. It may, as we have seen in the illustrations, be a receipt for the payment
of money; in such cases oral evidence of payment may be given. It was thus held in
Jafferji V Lukmanji( 19460, 13 E.A.C.A 77 that the fact that a mortgage recites
that in consideration of the sum of shs.2,000/= paid by the mortgagee the
mortgagor hereby covenants..’ does not prevent oral evidence being given to prove
non-payment. It follows that if the document contains reference to extraneous
matters outside the actual terms of the contract, oral evidence of these matters may
be admissible.

The application of the two rules of exception under S.90 that wills admitted
to probate may be proved by the probate and that requirement of appointment
certain offices, as illustrated by the following cases; in Kalimali V R (1953) 7
U.L.R 26, it was contended that the learned magistrate had no evidence before him
which justifies the finding that Mr. Singer was duly appointed as secretary to the
board. It was held that, where a person exercises the duties of an office he is
presumed under S.90 in exception one to have been duly appointed to that office.
Mr. Singer was therefore a public officer for purposes of S.78 (2) of the Penal
Code.

In Folks And Co V Thakvar and Another (1959) E.A 36, the learned judge had
treated the date on the top of a written guarantee as a term of the contract. The
court of appeal was of the view that this was incorrect. As stated by Sarkar at p.560
there is a prima facie presumption that documents have been executed on the date
indicated on them or the dates they bear. If there is no date supplied. If the date is
wrong, oral evidence may be given. Forbes,V.P quoted what Patterson J., said in
Browne V Burton(1848), 17 L.J.Q.B 49 At P.50 with approval;

“now the rule uniformly acted upon from the of Clayton’s case to the
present day is that a deed or other writing must be taken to speak from the
time of execution and not from the date apparent on the face of the true time
of execution; but as soon as the contrary appears, that date is indeed to be
taken prima facie as true time of execution; but as soon as the contrary
appears, the apparent date is to be utterly disregarded.
It was therefore open to the plaintiff to call oral evidence to show that the date
written on the written guarantee was not in fact the date of the execution and the
learned judge was wrong to exclude such evidence. Again in Mohammed Roshan
& Co V Santa Singh (1957) E.A 717 Forbes, V.P ,stated at p. 724 that similarly , I
think evidence is admissible to prove the date of any alteration to a document.

It is to be stressed that S.90 applies only when the document in question

prima facie contains or appears to contain all the terms of the contract. The court of
appeal stated in Mohammed Roshan & Co Vs Santa Singh ,above ,at P. 724 that
it is a well established principle that where it is clear on the face of a contract that
the written document does not contain the whole of the agreement between the
parties , the terms not embodied in writing may be proved by oral evidence. Since
the contract in this case referred generally to the excavation and filling of ground
and did not contain details of the work envisaged evidence was properly admitted
to establish the extent of the wok.

As we have seen above, S.90 bars the substitution of any other evidence for
the dispositive document. S.91 takes the matter further and precludes the admission
as between the parties and their representatives in interest of any evidence if oral
agreement or statement for the purpose of contradicting, varying, adding to or
subtracting from its terms.

The grounds for the exclusion under S.91 are two-fold; first , that to admit
inferior evidence when the law requires superior mode of proof would be to nullify
the law; and, secondly, when the parties have deliberately put their agreement into
writing it is conclusively presumed as between themselves and their privies that
they intended the writing to form a full and final statement of their intentions, and
one which should be safeguarded and free from possible future contaversies, bad
faith and perfidious memory. Thus all parole testimony of conversations and
negotiations held between the parties are rejected after the completion of the
contract because such evidence would naturally tend to substitute a new and
different contract for the one really agreed.

This section operates only as between the parties to the deed or their
representatives in interests. It has no application to strangers and it does not
therefore prevent a stranger from showing that the transaction or agreement was in
fact never intended by the parties to be what it claims. In Bilous V Bilous (1957)
E.A 96, a husband and a wife …………………deposit and the balance was
secured by a mortgage to the vendor. The wife instructed her advocate that the
conveyance was to be on her name alone but the husband was still liable as a
principal under the mortgage. The husband wanted them to hold the farm as
tenants in common but no deed was drawn up to this effect. The husband lived on
the farm and improved it tremendously. When his wife left him, she sued for a
declaration that the farm was her property and an injunction for trespass was
issued, the trial court held that no oral evidence was admissible to vary or explain
the contract since the husband was a party to the mortgage.

On appeal it was held that the husband was not party to the conveyance drawn on
the instruction of his wife. The oral evidence called for the husband did not
contradict or vary the conveyance of the mortgage; he claimed an equitable interest
which was entirely different from the legal estate with which those documents
dealt. S.92 could not therefore prevent him as stranger from showing how the
conveyance became to be executed trust had emerged in favour of the husband was
held admissible.
 Despite the general principle prescribed in S.91 there are six provisions there
under which constitute exceptions to the rule under this section. The seventh
exception is apparently established through case law in East Africa. The seventh
exception which should be read together with S.91 is that in spite of S.91 ,oral
evidence has been held by the court in India and in East Africa to be admissible
that a party who signed a contract was in fact acting as an agent. In Shah &
Others V Abdulla And Another(1962) E.A 769 the Kenya supreme court relied
upon the judgment of the Madras high court in the case of [Link] V G. Naidu
(31 MD 45) where it was stated that under English law in an action on a written
contract oral evidence is admissible to show that the party liable on a contract
contracted for himself and as the agent of his partners.

Such partners are liable to be sued on the contract, though no allusion is made to
them in it. This was also the position of the law in India as there was nothing in
S.91 of the Evidence Act to show that the legislature intended to depart from this
settled rule of the English law. Edmonds, [Link] concluded that “it is clear
from the above that evidence is admissible to establish an undisclosed principal,
though its admission does not have the effect of discharging the agent from
liability under the contract which he signed” stated at p.779 of the Shah’s case
supra.

The exceptions contained in the six provisions to S.91 are as follows; first,
any fact may be proved 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 execution, want of capacity in any contracting
party, want of failure of consideration or mistake in fact or law. This provision
applies to cases where evidence is admitted to show that a contract is void or
voidable or subject to rectification because it contains any of the following
vitiating elements; fraud, duress, lack of consideration ,incapacity ,mistake,
illegality, misrepresentation in its inception. Indeed if the validility of a written
contract is impeached it is no defence to rely on the document and rely on S.91. In
such cases the court is not bound by the mere pear expression of the parties it must
by means of oral evidence inquire into the real nature of the transaction between
them.

Therefore in Cheleta Coffee Plantation Ltd V Eric Mehlsen (1966) E.A 203, it
was held that the insertion of calendar” in the contractual document was a a
mistake and oral evidence was a admissible under S.98 provision(1) of the Kenya
Evidence Act to show that it was copies from a previous contract where it had a
different effect. The first proviso was also applied in Patel V Patel (1940) 19
K.L.R 41 and Custodian of Enemy Property V Reaney (1922) I.T.L.R 425.

Secondly, the existence of nay separate oral agreement as to any matter on

which a document is silent and which is not inconsistent with its terms may be
proved. In considering whether or not this proviso applies , the court shall have
regard to the degree of formality of the document. Under this proviso evidence of
any collateral parole agreement which does not interfere with the terms of the
contract may be given. Under it parties can prove that either contemporaneously or
as a preliminary measure they entered into distinct oral agreement on some
collateral matters about which the written agreement is silent. As stated by Munson
J. in Smith Mackenzie & C V Saleh Mahommed And Co (1909) 1 Z.L.R 277
and cited in Morris at p. 131 most of the cases under this proviso relate to an oral
agreement contemporaneous with the written agreement; but the law is the same if
the agreement were preliminary to the written agreement. It was held in Jos
Hansen And Sohene V Jetha Ltd (1959)E.A 563 that a contract of guarantee in
which the space of the signature of the fourth surety had been left blank was silent
as to whether the signatures of the four guarantees was a condition of the guarantee
and …..Oral statement of the three sureties that their signatures alone were
sufficient surety was not a subsequent modification of the guarantee but a
collateral oral term and evidence of it was therefore admissible.

Thirdly, the existence of any distinct subsequent oral agreement constituting

a condition precedent to the attaching of any obligation under any such contract,
grant or disposition of property may be proved. Under this proviso a
contemporaneous agreement to the effect that a written contract was to be of no
force or effect and that it was to impose no obligation at all until the happening of a
certain event may be proved.

Fourthly, the existence of any distinct subsequent oral agreement to rescind

or modify any such contract; grant or of property may be proved except in cases in
which such contract, grant or disposition of property is by law required to be in
writing or has been registered according to the law in force for the time being as to
the registration of documents. Under this proviso a prior written contract may be
varied by a subsequent verbal one in cases which the law does not require the
contract to be in writing. Where the original contract is required by law to be in
writing or where its execution has been followed by registration the proviso does
not apply.

This proviso was discussed in Ishakiya V Jusus (1965) E.A 241 and see also M.B
15/65. The plaintiff sued for unpaid rent. H relied on a written tenancy agreement
and pleaded a subsequent oral agreement as regards the amount of rent to be paid.
The written tenancy agreement provided that the rent should be the standard rent as
assessed by the Rent Control Board. The defendant objected to the admissibility of
the oral evidence under this proviso ion the ground that the agreement was required
by law to be in writing by virtue of S.91 of the Registration of Titles ordinance. It
was held that an agreement for lease need not by law be in writing for the purpose
of proviso 4 of S.91 of the evidence ordinance and since the tenancy agreement
was an agreement for lease, there was nothing in the circumstances to prevent the
parties before rent was paid, from fixing th amount of rent in a subsequent
agreement. The agreement was a mere contract to enter into a lease hold agreement
. Evidence of subsequent parole agreement was therefore admissible.

Fifthly, any usage or custom by which incidents not expressly mentioned in

any contract are usually annexed to contracts of that description may be p0roved,
if the annexing of such incident would not be repugnant to or inconsistent with the
express terms of the contract. Under this proviso parole evidence of usage or
custom are admissible in aid of the construction of a written agreement. Such
evidence is received for explaining or filling up terms used in commercial
contracts, insurance, negotiable instruments or other writings. However, the
evidence of custom or usage proposed must not be repugnant to, or inconsistent
with the written contract.

Sixthly, any fact may be proved which shows in what manner the language
of a document is related to existing facts. This proviso is based on the rule of
construction that where a document is perfectly plain no extrinsic evidence is
required to show in what manner the language of the document is related to
existing facts. However when the terms are vague, oral evidence can be adduced to
show in what manner the language is related to existing facts. We have seen in
Roshan V Santa Singh supra, that under proviso 6, evidence was admissible to
show how language of the altered document was related to the existing facts.
 It is generally agreed that proviso 6 must be read together with Ss.92 to 99,
which deal with the rules for construction of documents with the aid of extraneous
oral evidence of the U.E.A. It is provided in S.92 that when the language used in a
document is on its face ambiguous or defective, evidence may not be given of facts
which would show its meaning or supply its defects. For example if Rukunda
agrees to sell a bicycle at shs.300 or shs.400, evidence cannot be given to show
which price was agreed. If a deed contains blank spaces, evidence cannot be given
of facts which could show how they were meant to be filled. This section deals
with patent ambiguities and is based on the principle that the duty of court in the
construction of documents is not to find out the real intention of the parties but to
establish the meaning of the words used by them. Therefore if the language of the
deed is ambiguous or defective, no evidence can be given to make it certain.

Under S.93 when the language used in a document is plain in itself and
when it applies accurately to existing facts, evidence may be given to show that it
was not meant to apply to such facts. This section is based on the established rule
of construction that documents which are plain and unambiguous must be
construed according to the plain and unambiguous language of the instrument. for
instance if Manyindo agrees in writing to sell 10 acres of plantain on his land near
Nyakasara school to Nyakabwa and as a matter of fact Manyindo has 10 acres in
the vicinity of the school, evidence may not be given to show that the land meant
to be sold was 10 acres of plantain owned also by Manyindo near Virika school. It
was thus held in Choitram V Lazar (1959)E.A 157 that words “taken over”
which were both an admission and a memorandum in writing sufficient to satisfy
S.6(1) sale of goods Ordinance were clear and unambiguous to render inadmissible
any attempt to explain orally that what was meant was something different.
 However, it is provided inS.94 that when the language used in a document is
plain in itself but is meaningless in reference to existing facts, evidence may be
given to show that it was used in a peculiar sense. This section is based on the
maxim that a false description does not vitiate the document. For instance if
Okumu agrees to sell his house in Tororo to Kabagambe but as a matter of fact he
has no house at Tororo but he had a house in Mbale about which he had verbally
intimated to Ssekandi he wanted to sell, the conversation between Okumu and
Ssekandi may be proved to show that the written agreement for the disposition of
property between Okumu and Kabagambe referred to the house at mbale. Thus
evidence was admitted in Cheleta Coffee Plantations V Eric Mehlesen, above, as
to the meaning of the phrase “any year’s crop” to resolve a latent ambiguity.

According to S.95 when the facts are such that the language used might have
been meant to apply to any one and could not have been meant to apply to more
than one, of several persons or things ,evidence may be given which shows which
of those persons or things it was intended to apply . Under this section, where the
description in the document applies equally to any one of two or more subjects,
evidence explains its language is permissible if it is clear that it could not have
been intended to apply to both. For instance Ocora agrees in writing to sell his car
for shs. 3,000/= to J. Ochola of Makerere and there are three Ocholas at Makerere
whose initials are all Js, namely John Ochola ,James Ochola and Joseph Ochola,
oral evidence is admissible to show which of the three Ocholas was meant and
intended to be a party to the contract. Under S.96 when the language used applies
partly to one set of existing facts and partly to another set of existing facts, but the
whole of it does not apply correctly to either evidence may be given to show which
of the two it was meant to apply. The illustration under similar section of the I.E.A
is useful. A agrees to sell B “my land at X but not in the occupation of Y ,and has
land in the occupation of Y. A has land at x, but not in the occupation of Y and has
land in the occupation Y but it not at x. evidence may be given to show which he
meant to sell.

Evidence may be given under S.97 to show the meaning of illegible or not
commonly intelligible characters, of foreign absolute, technical, local and
provincial expressions of abbreviations and words used in a peculiar sense. Here
the evidence is admitted merely to explain the meaning of expressions referred to
above on the recognition of the fact that words of technical or legal character must
be construed according to the technical or legal meaning; and the same idea applies
to scientific terms.

It is provided in S. 98 that persons who are not parties to a document5, or

their representatives in interest may give evidence of any facts to show a
contemporaneous agreement varying the terms of the document. In other words it
is recognized in this section that the principle of S.91 we have discussed above
does not apply to third parties because third parties must not be prejudiced by
carelessness or fraud of the parties and therefore they must not be precluded from
proving the truth however contradictory it may be to the written statement of the
parties.

Finally it is stated in S.99 that nothing in Ss.90 to 98 of the Act shall be taken to
affect any of the provisions of the construction of wills are found in Ss 61 to 98 of
the succession Act (cap 139) of the 1964 Uganda Laws.

g) Documentary evidence under the evidence (bankers books)act(cap 44)

It would seem to us pertinent to discuss briefly under the general rubric of

documentary evidence the special statutory rules which govern the admission of
documentary evidence from the bankers books under the above Act. As pointed out
by Cross the common law with regard to the admissibility of statements in public
documents was defective in two respects; first, the category of public documents
was limited with the result that statements in such resisters as those kept of non-
conformist baptisms and marriages were inadmissible as evidence of their truth.

Secondly, although contents of public documents could be proved by secondary

evidence, a waste of time was caused by the fact that it was usually necessary to
call a witness who had examined the original. The bankers books evidence Act
1879 was one of the statutes designed to remedy these defects.

The Uganda Evidence (Bankers Book) Act was enacted in 1930 and possibly
modeled on the Indian Bankers’ Book Evidence Act(N0.18 of 891 ) and the
English Banker’ Books Evidence Act 1879. Similar Kenya Act enacted in 1937 has
now been incorporated in the 1963 Kenya Evidence Act Ss.176 to 181.

S.2 of the Uganda Act contains definition of the important terms in the Act. A
Bank” or “banker” is defined as any person carrying on the business of banking in
Uganda, Kenya or Tanzania. Bankers’ books include ledgers, day books, cash
books and all other books used in the ordinary business of the bank.

S.3 provided an exception to the hearsay rule. It is stated therein that a copy of any
entry in the bankers’ book shall in all legal proceedings be received as prima facie
of such entry and of the matters transactions and accounts therein recorded. The
section is stated to be subject to the provisions of the Act; S.4 requires that the
original book should have been kept in the ordinary course of business and the
book must be in custody of the bank.

The proof required under S .4 may be given by a partner or officer of the bank and
may be given orally or by an affidavit. It was argued in D’sa V R (1957) E.A 627
above, that the evidence given by a bank inspector was not admissible orally
because neither the account nor a copy of it complied with S.4 of the Ordinance. It
was held, however, that the evidence was admissible under S.63 (g) of the Uganda
Evidence Ordinance in as much as the original consisted of numerous accounts or
documents which could not conveniently be examined in courts and since the fact6
to be proved was the general result of the examination of the many accounts.

S.5 provides that a copy of an entry in a bankers’ 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. Such proof must be given by some
person who has examined the copy with the original entry and may be given either
orally or by affidavit.

S. 6 contain restrictions on the compelling of production of bankers’ book. a

banker or officer of a bank shall not, in any legal proceedings to which a bank is
not a party, be compelled to produce any bankers ‘books the content of which can
be proved under the Act, or to appear as a witness to prove the matters or
transactions recorded, unless by an order of a court made for special purpose.

S.7 gives the general option and right to a party to apply to court for
permission to inspect a bankers’’ book for purposes of proceedings. On the basis of
such application, the court may order that such a party is at liberty to inspect and
take copies of any entries in bankers’ book. An order to the bank may be with or
without summons and, unless the court otherwise directs shall be served three days
before the same is obeyed.

S.8 gives discretionary power to the court to determine by whom costs of

applications, inspection or production of the bankers’ book in evidence shall be
paid.
END OF CHAPTER NINE