DOCUMENTARY EVIDENCE

Under this sub-topic, the following areas shall the covered;

a. Classification of the documents which determines the mode of its truth in court.

b. Proof of execution i.e. how to prove the document

c. Specific rules as to the proving of the contents of the documents.

d. The presumption that underlies various documents

e. Whether other evidence may be adduced to prove the content of a document.

What is a document?

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

Under section 2 (1) (c) defines documentary evidence to mean all documents produced for
the inspection of the court.

Under the evidence law, the word document means much more than its ordinary meaning i.e.
it won’t refer only to things put on paper but even sign posts, tape recording. In another of
court decision, it has been held that tape record were admissible in evidence. The case of
Uganda v Everesto Nyanzi where a tape was held to be documentary evidence.

Classification of documents

The way documents are classified determines whether or not it’s admissible. There are three
main types of classifications;

1. Attested documents as opposed to unattested. The term attested means witnessing

any act or event and with regard to documents it means witness the signing or
execution of a document. Certain documents are required by law to be attested. E.g. a
will under the succession Act, Land transfer under the Registration of Titles Act,
Power of Attorney. These are referred to as attested documents. The attestation
confers validity of such documents. Non attestation renders the documents invalid.

Under section 67 of the Act, if a document is required by law to be attested, it shall

not be used as evidence until one attesting witness at least has been called for the
purpose of proving its execution, if there is an attesting witness alive, and subject to
the process of the court and capable of giving evidence.

Unattested documents are those documents which are not required by law to be
attested in order to be valid. Under section 71 of the Act, an attested document not
required by law to be attested may be proved as if it were unattested.

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2. Private as opposed to public documents. Section 73 of the Act provides for the list of
those documents that are considered to be public documents to include;

a. Documents forming the acts or records of the acts

i. of the sovereign authority;

ii. of official bodies and tribunals;

iii. of public officers, legislative, judicial and executive, whether of

Uganda, of any other part of the Commonwealth, of the Republic of
*Ireland or of a foreign country;

b. Public records kept in Uganda of private documents.

In the case of Tootal Broadhurst Lee Co. Ltd v. Ali Mohammed [1954] 24
K.L.R 31 this was a case for damages for infringement of a design registered in
Great Britain. The Plaintiff relied on a document bearing the seal of the patent
office of Great Britain purporting it to be a copy of the certificate of registration
of the design. Two questions arose, was the document a public document which
could be proved through certified copies? Whether you would need to have the
document itself or did a certified copy suffice. The court held that the certificate
of registration being a document issued by authority of law, by a public officer is
necessarily a public document. Secondly, that a certificate of registration does
not come within the category of public documents which can be proved with
means of certified copies. Essentially what the court was ruling is that this was
not a public document within the meaning of S. 80(1) and could not be proved by
a certified copy

Under section 74 all documents, other than those specified in section 73, are
private. It should be noted that a private document may be rendered to be public.
The Registration of Documents Act Cap 81 appears to render a formally private
document public ounce registered. The case of Kafeero v Turyagyenda where the
issue was whether there was a partnership. This case discusses how the private
document can be rendered public.

It should be noted that registration under the Registration of Documents Act are
not mandatory but voluntary. Failure register the document does not render it
void. There is no time frame within which a document should be registered. See
the case of Kalid Walusimbi v Jamil Kaaya.

3. Primary as opposed to secondary document covered under section 60 of the Act the
contents of documents may be proved either by primary or by secondary evidence.
Section 61 defines primary evidence of a document to mean Primary evidence to
mean the document itself produced for the inspection of the court. The section gives
the explanation of what may be termed primary and secondary.
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Under explanation 1, where a document is executed in several parts, each part is
primary evidence of the document. 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.

Under Explanation 2, where a number of documents are all made by one uniform
process, as in the case of printing, lithography or photography, each is primary
evidence of the contents of the rest; but where they are all copies of a common
original; they are not primary evidence of the contents of the original.

See the case of Director of Public Prosecutions of Tanzania v Akber Rashid

Nathani [1966] 1 EA 13 which discusses the difference between primary and
secondary. In this case court held that loose leaf cyclostyled volume was apparently
produced by a process capable of making many other documents uniform with the
leaves of the volume produced in evidence; consequently, it was admissible as an
original by virtue of s. 62 of the Evidence Act of Tanzania.

In this case the respondent was the proprietor of a travel agency with two branches,
one in Zanzibar and the other one in Dar es salam. Where one branch was approved
the other one was not approved to issue air tickets. The respondent was charged and
convicted with intent to deceive the air ticket. One of the witness testified that the
Dar es salam office had not been approved by I.A.T.A, on appeal the High Court held
that the loose leaf cyclostyled volume was not an original document and that no
circumstances had been proved which entitle the prosecution to give secondary
evidence, the volume was inadmissible. It further held that, the fact that the
respondent’s Dar es salam office did not appear on the agency list could not be
proved as oral evidence.

Secondary evidence is defined under section 62 of the Evidence Act to mean and
include;

a. Certified copies given under the provisions hereafter contained;

b. Copies made from the original by mechanical processes which in themselves

ensure the accuracy of the copy, and copies compared with those copies;

c. Copies made from or compared with the original;

d. Counterparts of documents as against the parties who did not execute them;

e. Oral accounts of the contents of a document given by some person who has
himself or herself seen it.

Proof of execution of documents

Section 63 of the Act lays down the rule on proof of the document where documents
must be proved by primary evidence except in the cases hereafter mentioned. The
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aspect of proof is very important because before the document is admitted in
evidence; it must be proved that it is genuine, and duly executed by the person who
appears on the face of the document as signatories. See

Public document

Under section 75 of the Act, every public officer having the custody of a public
document, which any person has a right to inspect, shall give that person on demand
a copy of it on payment of the legal fees for the copy, together with a certificate
written at the foot of the copy that it is a true copy of that document or part of the
document, as the case may be, and the certificate shall be dated and subscribed by the
officer with his or her name and official title, and shall be sealed whenever the officer
is authorized by law to make use of a seal, and the copies so certified shall be called
certified copies.

Under the Explanation, any officer who, by the ordinary course of his or her official
duty, is authorized to deliver such copies shall be deemed to have the custody of
those documents within the meaning of this section.

Section 76 of the Act provides that such certified copies may be produced in proof of
the contents of the public documents or parts of the public documents of which they
purport to be copies.

Section 77 of the Act provides for other public documents and the manner in which
they should be proved by certified copies, documents printed by order of
government, publications on orders of government.

The documents by common wealth or foreign government may also be proved by

journals published by those governments.

Proof of attested document

Under section 67 of the Act if a document is required by law to be attested, it shall

not be used as evidence until one attesting witness at least has been called for the
purpose of proving its execution, if there is an attesting witness alive, and subject to
the process of the court and capable of giving evidence.

Where the attesting person cannot be found, section 68 of the Act provides that if no
such attesting witness can be found, it must be proved that the attestation of one
attesting witness at least is in his or her handwriting, and that the signature of the
person executing the document is in the handwriting of that person.

Under section 69 of the Act, the admission of a party to an attested document of its
execution by himself or herself shall be sufficient proof of its execution as against
him or her, though it is a document required by law to be attested.
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Under section 70 of the Act, if the attesting witness denies or does not recollect the
execution of the document, its execution may be proved by other evidence.

According to section 90 of the Act, when any document, purporting or proved to be

thirty years old, is produced from any custody which the court in the particular case
considers proper, the court may presume that the signature and every other part of
that document, which purports to be in the handwriting of any particular person, is in
that person’s handwriting and, in the case of a document executed or attested, that it
was duly executed and attested by the persons by whom it purports to be executed
and attested.

In the explanation, documents are said to be in proper custody if they are in the place
in which, and under the care of the person with whom, they would naturally be; but
no custody is improper if it is proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to render such an origin probable.

Proof of unattested document

Unattested document is proved under section 71 of the Act which states that an
attested document not required by law to be attested may be proved as if it were
unattested. According to section 72 of the Act, the court is empowered to compel any
person to give a sample of signature for purposes of proving handwriting.

General rule in proof of documents

The general rule as stated in section 63 of the Act is that documents must be proved
by primary evidence except in the cases hereafter mentioned. In other words, the any
person intending to rely on a document is required to exhibit an original document
itself.

Rational to the general rule under section 63

It has been argued that the rule that the document must be proved by primary
evidence is based on the best evidence rule. In the case of Omychund v Barker
(1745) 1 Atk, 21, 49; 26 ER 15, 33. Lord Harwicke stated that no evidence was
admissible unless it was "the best that the nature of the case will allow".

Previous, the rule developed in the eighteenth century, when pretrial discovery was
practically nonexistent and manual copying was the only means of reproducing
documents.

According to Allan L. Fink in his recommendation on cited as “Best Evidence Rule,

26 Cal. L. Revision Comm’n Reports 369 (1996)”, in the last three decades,
broad pretrial discovery has become routine, particularly in civil cases.
Technological developments such as the dramatic rise in use of facsimile
transmission and electronic communications pose new complications in

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 applying the Best Evidence Rule and its exceptions. The rationale for the rule no
longer withstands scrutiny.

The exceptions to the application of the best evidence rule are contained in section
64 of the Act

Section 64 contains all the important exception to the rule and states that secondary
evidence may be given in the following ways;

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,
or not subject to, the process of the court, or of any person legally bound to produce
it, and when, after the notice mentioned in section 65, that person does not produce it;

When the existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved or by his or her
representative in interest;

a. When the original has been destroyed or lost, or is in the possession or power
of any person not legally bound to produce it, and who refuses to or does not
produce it after reasonable notice, or when the party offering evidence of its
contents cannot, for any other reason not arising from his or her own default
or neglect, produce it in reasonable time.

b. When the original is of such a nature as not to be easily movable.

c. When the original is a public document.

d. When the original is a document of which a certified copy is permitted by this

Act, or by any other law in force in Uganda, to be given in evidence.

e. When the originals consist of numerous accounts or other documents which

cannot conveniently be examined in court and the fact to be proved is the
general result of the whole collection.

Presumptions as to the genuineness of documents in evidence

Sections 77 to 90 of the evidence Act provides for documents presumed to be genuine for
purposes of evidence. These include;

a. Document purporting to be a certificate, certified copy or other document, which is by

law declared to be admissible as evidence of any particular fact, and which purports to
be duly certified by any officer in Uganda, to be genuine if the document is
substantially in the form and purports to be executed in the manner directed by law in
that behalf. The court shall also presume that any officer by whom any such document

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 purports to be signed or certified held, when he or she signed it, the official character
which he or she claims in that paper.

b. Document produced before any court, purporting to be a record or memorandum of

any evidence given in a judicial proceeding or before any officer authorised by law to
take evidence, required by law to be reduced to writing, and purporting to be signed
by any judge or magistrate, or by any such officer as aforesaid, the court may presume
that the document is genuine and that the evidence recorded was the evidence actually
given; may take oral evidence of the proceedings and the evidence given; and shall
not be precluded from admitting any such document merely by reason of the absence
of any formality required by law; provided always that an accused person is not
injured as to his or her defence on the merits.

c. Document purporting to be the Gazette, or the Government Gazette of any country of

the Commonwealth, or to be a newspaper or journal, or to be a copy of a private Act
of Parliament printed by a government printer or in any of the manners mentioned in
the Documentary Evidence Act, 1882, of the United Kingdom, and of every document
purporting to be a document directed by any law to be kept by any person, if the
document is kept substantially in the form required by law and is produced from
proper custody.

d. Document produced before any court, purporting to be a document which, by the law
in force for the time being in the United Kingdom or the Republic of Ireland, would
be admissible in proof of any particular in any court of justice in the United Kingdom
or the Republic of Ireland, without proof of the seal or stamp or signature
authenticating it, or of the judicial or official character claimed by the person by
whom it purports to be signed, the court shall presume that the seal, stamp or
signature is genuine, and that the person signing it held, at the time when he or she
signed it, the judicial or official character which he or she claims.

e. Maps or plans purporting to be made by the authority of the Government were so

made and are accurate.

f. 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, and of every book
purporting to contain reports of decisions of the courts of that country.

g. Documents purporting to be executed out of Uganda were so executed and were duly
authenticated if;

i. In the case of such a document executed in the United Kingdom, it purports to

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

ii. In the case of such a document executed (elsewhere than in the United
Kingdom) in the Republic of Ireland or in any country of the Commonwealth
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 outside Africa, it purports to be authenticated by the signature and seal of
office of the mayor of any town or of a notary public or of the permanent head
of any government department in the Republic of Ireland or in any such
country of the Commonwealth;

iii. In the case of such a document executed in any country of the Commonwealth
in Africa, it purports to be authenticated by the signature and seal of office of
any notary public, resident magistrate, permanent head of a government
department, or resident commissioner or assistant commissioner in or of any
such country; and, in addition, in the case of a document executed in Kenya, it
purports to be authenticated under the hand of any magistrate or head of a
government department;

See the sections.

Parole Evidence Rule/Exclusion of oral evidence by documentary evidence

The main question is whether oral evidence may be produced to prove the terms contained in
the document. The general rule is that where there is a written document, other evidence to
substitute or vary the terms of the document is not admissible. The principle operates in tow
situations;

a. Where a contract has been reduced in writing, the terms must be proved by reference
to the document itself.

b. The transaction required to be in writing by law must be in writing. E.g. According to

section 10 (5) of the Contract Act No. 7 of 2010 a contract the subject matter of
which exceeds twenty five currency points shall be in writing. Subsection 6 of the
same Act further states that a contract of guarantee or indemnity shall be in writing.

Payroll evidence Rule

The payroll evidence rule is a substantive common law rule in contract cases that prevents a
party to a written contract from presenting extrinsic evidence that discloses an ambiguity and
clarifies it or adds to the written terms of the contract that appears to be whole

According to section 90 of the Evidence Act when the terms of a contract or of a grant, or of
any other disposition of property, have been reduced to the form of a document, and in all
cases in which any matter is required by law to be reduced to the form of a document, no
evidence, except as mentioned in section 79, shall be given in proof of the terms of that
contract, grant or other disposition of property, or of such matter except the document itself,
or secondary evidence of its contents in cases in which secondary evidence is admissible
under the provisions hereinbefore contained.

Rational for the rule

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The payroll evidence rule treats formal written documents created by parties as reflective of
their true intentions regarding which terms are meant to be included in the contract. In doing
this, it assumes that duties and restrictions that do not appear in the written document, even
though apparently accepted at an earlier stage, are not intended by the parties to survive.

Exceptions to the payroll evidence rule

The exceptions are provided under sections 91 and 92 of the Evidence Act

BURDEN AND STANDARD OF PROOF

The law of evidence has formulated certain rules that may be followed in order to establish
liability or otherwise of a party to the proceedings. The general being that all facts must be
proved and thus the law prescribing the following;

 What fact may be proved?

 Who has to prove certain facts?

 What is the procedure for proving such facts?

The effect of the three attributes leads to what we call burden of proof.

Generally, the term burden of proof denotes the obligation to prove a fact or facts. The
obligation may mean different things depending on the situation to which it is applied. The
term burden of proof is used in two different senses.

1. It may mean the duty to adduce evidence at a certain stage of the proceedings. This is
normally referred to as the evidential burden of proof i.e. sometimes called onus
probendi. This burden constantly shifts to the other party e.g. where the prosecution
adduces evidence of commission of an offence, the accused may raise the defense of
insanity and in that case the burden shifts to him in some aspects.

2. The second aspect is the burden in the primary or real sense. It has also been called
the legal burden. This means the duty to prove a case finally. In criminal cases, the
legal burden is normally on the prosecution and in civil cases; it’s the person who
asserts i.e. plaintiff.

General principles governing Burden of Proof

This is covered under section 101 to 111 of the Evidence Act.

Under section 101 of the Act whoever desires any court to give judgment as to any legal
right or liability dependent on the existence of facts which he or she asserts must prove
that those facts exist. When a person is bound to prove the existence of any fact it is said

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that the burden of proof lies on that person. The provision stems from the common law
principle that “he who asserts a matter must prove it but he who denies may not prove”.

However, in most cases the extent of burden of proof will depend on the nature of the
case and normally in civil cases a person who asserts is the plaintiff and bears the burden
to prove.

Under section 102 of the Act provides that the burden of proof in a suit or proceeding lies
on that person who would fail if no evidence at all were given on either side . Section 103
states that the burden of proof as to any particular fact lies on that person who wishes the
court to believe in its existence, unless it is provided by any law that the proof of that fact
shall lie on any particular person. The provisions herein above apply to both criminal and
civil proceedings.

In criminal cases, the burden of proof is on the prosecution in conformity with the spirit
of presumption of innocence as enshrined in the constitution of the republic of Uganda,
1995.

Burden of proof in criminal cases

The burden of proof in criminal cases was established in Woolmington v DPP [1935]
AC 462 whose facts are that Woolmington wife left him and went to live with her
mother. Woolmington went to his mother in law where he shot and killed his wife. He
was arrested and charged with murder. In his defense, he claimed that he did not intent to
kill her and in the process of trying to win her back, he planned to scare her by
threatening to kill himself if she did not come back. When he tried to show her the gun
he intended to use on himself, by accident the gun went off shooting her in the heart. The
trial judge concluded that Woolmington was responsible for the death of his wife. He
noted that the onus was on him to prove that the shooting was accidental. He was
convicted and sentenced to death.

He appealed to the House of Lords which held as follows;

It is the duty of prosecution to prove the prisoner’s guilt. If there is a reasonable doubt
created, the prisoner is entitled to an acquittal.

Standard of proof

This principle refers to the level of proof which a party in criminal matters ought to
discharge to secure a conviction. In criminal proceedings, the standard of proof is beyond
reasonable doubt.

In Katimba v Uganda [1967] 1 EA 363 (HCU), the appellant was charged with two
counts of Burglary and theft as well as the alternative charge of receiving and retaining
stolen property. The trial Magistrate found that the prosecution had failed to prove
beyond reasonable doubt the charges. Instead, the magistrate convicted the appellant of

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the charge of indecent assault since the victim while testifying told court that she had
been sexually assaulted by the appellant.

Sir Udo Udoma noted that after the trial Magistrate found that the prosecution had failed
to prove the charges beyond reasonable doubt on the count of Burglary and theft as well
as receiving and retaining stolen property, it was wrongful for him to find the appellant
guilty of indecent assault in the absence of corroboration.

In civil cases, the party who bears the burden has only to show that his or her case is
more probable i.e. he is more likely to be correct. In Miller v. Minister of Pensions
[1947] 2 All ER 372 Lord denning held that there was a distinction between beyond
reasonable doubt. He noted that beyond reasonable doubt does not necessarily mean
proof beyond all shadow of doubt that if that was the case, the law will fail to protect the
community if fanciful probabilities were allowed to displace a finding of beyond
reasonable doubt.

In approaching this issue, the Ugandan court applies the standard beyond reasonable
doubt. They suggest that the standard suggest a high degree of proof which is expected
and that it would be discharged the moment the court is satisfied that the evidence
adduced is inconsistence with the innocence of the accused. However, in all cases where
the accused has a burden to prove, it’s on standard of balance of probabilities as
enshrined in section 104 of the Act.

In some cases, the standard required in civil may be slightly beyond balance of
probabilities but not beyond reasonable doubt e.g. fraud, matrimonial causes.

COMPETENCE AND COMPELLABILITY

Competence refers to the capacity to give evidence. Under section 117 of the Act, all
persons shall be competent to testify unless the court considers that they are prevented
from understanding the questions put to them, or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body or mind, or any
other cause of the same kind.

Under the explanation, a lunatic is not incompetent to testify, unless he or she is

prevented by his or her lunacy from understanding the questions put to him or her and
giving rational answers to them.

Compellability refers to whether a particular witness can be subjected to compulsion

processes of the court to induce that person to testify in court. Can the witness be
summoned to testify and if he refuses, can he be arrested and imprisoned for contempt of
court.

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The general is contained in section 131 of the Act which provides that a witness shall not
be excused from answering any question as to any matter relevant to the matter in issue
in any suit or in any civil or criminal proceeding, upon the ground that the answer to the
question will incriminate, or may tend directly or indirectly to incriminate, the witness,
or that it will expose, or tend directly or indirectly to expose, the witness to a penalty or
forfeiture of any kind, or that it may establish or tend to establish that he or she owes a
debt or is otherwise subject to a civil suit; but no such answer, which a witness shall be
compelled to give, shall subject him or her to any arrest or prosecution, or be proved
against him or her in any subsequent criminal proceeding, except a prosecution for
giving false evidence by that answer.

Under Explanation, a person who is charged with an offence who applies to be called as
a witness shall not be excused from answering any question that may tend to incriminate
him or her as to the offence charged.

Specific attributes of witness who are competent and compellable

Dumb witness

Its provided for under section 118 of the Act which provides that a witness who is unable
to speak may give his or her evidence in any other manner in which he or she can make it
intelligible, as by writing or by signs; but the writing must be written and the signs made
in open court. Evidence so given shall be deemed to be oral evidence. In Hamis s/o
Salim v R confirms that a witness who cannot speak or hear is a competent witness.
However, signs and writing must be done in open court and interpretation must be done
by expert.

Accused person

Under section 117 of the Act, all persons shall be competent to testify. Therefore, an
accused person is a competent witness for the defense but he is not compellable to
give evidence. If he gives evidence on oath, prosecution has a right to cross-examine him
and ounce he takes oath, he undertakes to tell the truth.+

Insane person

Section 117 of the Act provides that all persons shall be competent to testify unless the
court considers that they are prevented from understanding the questions put to them, or
from giving rational answers to those questions, by tender years, extreme old age,
disease, whether of body or mind, or any other cause of the same kind.

Under Explanation, a lunatic is not incompetent to testify, unless he or she is prevented

by his or her lunacy from understanding the questions put to him or her and giving
rational answers to them.

Accomplice

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Under section 132 of the Act, an accomplice shall be a competent witness against an
accused person; and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. The evidence ought to be corroborated on
the grounds that an accomplice has an interest in the case and that he may want to shift
the blame on the accused.

Spouses

Under section 120 of the Act, the wife or husband of the accused person shall be a
competent (but not compellable) witness for the prosecution without the consent of the
accused person.

It also provided that the wife or husband of the accused person shall be a competent and
compellable witness for the defence whether the accused person is charged alone or
jointly with another person.

Under section 120 (2) of the Act, “husband” and “wife” mean respectively the husband
and wife of a subsisting marriage recognised as such under any written or customary law.

Children of tender years

Section 117 of the Act states that a child of tender years may not be a competent witness
where it is prevented from understanding the questions put to them, or from giving
rational answers to those questions. The phrase a child of tender years refers to that child
of the average age of 14 years. However, determination of the child of tender years
depends on the court and the age of 14 years is discretionary and simply provides for the
guideline.

The court is expected to conduct a voire dire or a trial within a trial in order to determine
if the child understands the nature of an oath and whether the child has sufficient
capacity or intelligence to give reliable evidence. i.e. does the child know the duty of
telling the truth. See Turyamwijuka V Uganda Criminal Appeal No. 65 Of 2008
where court noted that as a general rule, whenever a child appears to be around the age of
14 years or below, the Court should alert itself to the possibility that the child might not
be of sufficient intelligence or be able to understand the nature of the oath, and should
accordingly carry out a voire dire.

Compellability and Privileges

Public police and privileges deals with a situation where evidence may be relevant and a
witness is competent but not compellable to testify on grounds that he enjoys certain
immunity. There are three main types of privileges;

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  Private privilege

 Professional privilege

 Public privilege

Private privilege refers to privileges against compellability enjoyed by private individuals as

a result of personal status. E.g. the privilege enjoyed by spouse under section 120.

Professional privilege refers to those not compelled to reveal communication in those

professionals and their clients. E, g. doctors etc.

Under section 125 no advocate shall at any time be permitted, unless with his or her client’s
express consent, to disclose any communication made to him or her in the course and for the
purpose of his or her employment as an advocate by or on behalf of his or her client, or to
state the contents or condition of any document with which he or she has become acquainted
in the course and for the purpose of his or her professional employment, or to disclose any
advice given by him or her to his or her client in the course and for the purpose of that
employment; but nothing in this section shall protect from disclosure;

 Any such communication made in furtherance of any illegal purpose;

 Any fact observed by any advocate in the course of his or her employment as such,
showing that any crime or fraud has been committed since the commencement of his
or her employment.

It is immaterial whether the attention of the advocate was or was not directed to that fact by
or on behalf of his or her client.

Under Explanation, the obligation stated in this section continues after the employment has
ceased. According to section 125, the obligation applies to interpreters, and the clerks or
servants of advocates.

Professional privilege extends to judicial officer under section 119 where no judge or
magistrate shall, except upon the special order of some court to which he or she is
subordinate, be compelled to answer any questions as to his or her own conduct in court as
such judge or magistrate, or as to anything which came to his or her knowledge in court as
such judge or magistrate; but he or she may be examined as to other matters which occurred
in his or her presence while he or she was so acting.

Public Privilege is intended to protect government secrets from disclosure during

proceedings. A number of government documents as well as official communications
between government officials are privileged. These are provided for under sections 122 and
123 of the Act.

Under section 122 of the Act, no one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of State, except with the permission of the
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officer at the head of the department concerned, who shall give or withhold that permission as
he or she thinks fit.

In addition section 123 provides that no public officer shall be compelled to disclose
communications made to him or her in the course of his or her duty, when he or she considers
that the public interest would suffer by the disclosure.

The question is whether or not the court of law can compel the public official to explain why
he thinks that the evidence in a document is confidential. In Duncan v Cammell, Laird and
Company Limited (Discovery) [1942] AC 624 relatives of deceased seamen claimed
damages against the defendants after their husbands were lost at sea in a submarine built by
the defendants. The Ministry of Defence instructed the defendants not to disclose any details
of the boat’s construction, on the ground that it would be contrary to the public interest to
produce them.

Held: The Minister’s declaration that national security required non-disclosure was sufficient
and binding on the courts. If the Crown made a claim to Crown privilege in proper form, the
Courts were precluded from investigating further: ‘This question is of high constitutional
importance, for it involves a claim by the Executive to restrict the material which might
otherwise be available for the tribunal which is trying the case.’

Viscount Simon LC said:

“Documents otherwise relevant and liable to production must not be produced if the
public interest requires that they should be withheld’ and ‘In a word, it is not enough
that the minister of the department does not want to have the documents produced.
The minister, in deciding whether it is his duty to object, should bear these
considerations in mind, for he ought not to take the responsibility of withholding
production except in cases where the public interest would otherwise be damnified,
for example, where disclosure would be injurious to national defence, or to good
diplomatic relations, or where the practice of keeping a class of documents secret is
necessary for the proper functioning of the public service. When these conditions are
satisfied and the minister feels it is his duty to deny access to material which would
otherwise be available, there is no question but that the public interest must be
preferred to any private consideration”

In Conway v Rimmer HL ([1968] AC 910 the plaintiff was a former probation police
officer constable. He sued the defendant for malicious prosecution and false imprisonment
and applied for discovery of certain documents in the possession of the defendant who was
by then claimed privilege. Court held that the documents be produced for court’s inspection
and that if the court found the disclosure would not be prejudicial to public interest or that
any possibility of such prejudice was insufficient to justify its being withheld then the
disclosure should be ordered.

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Court further noted that it would give great weight to preserving the confidentiality of tax
documents in the hands of the Revenue and that no harm should be done to the state by
disclosure against public interest in the administration of justice by ensuring that evidence is
adduced.

In Uganda section 124 falls within public and professional privilege where no magistrate or
police officer shall be compelled to say from where he or she got any information as to the
commission of any offence, and no revenue officer shall be compelled to say from where he
or she got any information as to the commission of any offence against the public revenues.

Under the Explanation, “Revenue officer” in this section means any officer employed in or
about the business of any branch of the public revenue.

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Under section 128 of the Act, no one shall be compelled to disclose to the court any
confidential communication which has taken place between him or her and his or
her legal professional adviser, unless he or she offers himself or herself as a witness,
in which case he or she may be compelled to disclose any such communications as
may appear to the court necessary to be known in order to explain any evidence which he or
she has given, but no other.

UDICIAL NOTICE
Judicial notice is a rule in the law of evidence that allows a fact to be introduced into
evidence if the truth of that fact is so notorious or well known, or so authoritatively attested,
that it cannot reasonably be doubted. Facts and materials admitted under judicial notice are
accepted without being formally introduced by a witness or other rule of evidence, and they
are even admitted if one party wishes to lead evidence to the contrary.

This is the process by which courts take cognizance or notice of matters which are so
notorious or clearly established that formal evidence of their existence is unnecessary, as well
as matters of common knowledge and everyday life. The common law doctrine is that
whenever a fact is so generally known, that every ordinary person may be reasonably
presumed to be aware of it, the court notices it. According to Justice Isaacs in this case.

Things court may take judicial notice of should be either a public or universal nature which
are so well known that it would be wastage of court’s time to require further proof of them.

Judicial notice is provided for under section 55 of the Evidence Act, which provides that no
fact of which the court will take judicial notice need be proved.

Categories of facts which are judiciary noticed

Section 56 (1) of the Act provides that court shall take judicial notice of the following facts;

 All Acts and Ordinances enacted or hereafter to be enacted, and all Acts of Parliament
of the United Kingdom now or heretofore in force in Uganda;

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  All Orders in Council, laws, statutory instruments or subsidiary legislation now or
heretofore in force, or hereafter to be in force, in any part of Uganda;

 The course of proceeding of Parliament, and of the councils or other authorities for
the purpose of making laws and regulations established under any law for the time
being relating thereto;

 The accession and the sign manual of the Head of the Commonwealth;

 The seals of all the courts of Uganda duly established; all seals of which the English
courts take judicial notice; the seals of courts of admiralty and maritime jurisdiction
and of notaries public, and

 All seals which any person is authorised to use by any Act of Parliament or other
written law;

 The accession to office, names, titles, functions and signatures of the persons filling
for the time being any public office in any part of Uganda, if the fact of their
appointment to that office is notified in the Gazette;

 The existence, title and national flag of every State or Sovereign recognised by the
Government;

 The divisions of time, the geographical divisions of the world, and public festivals,
fasts and holidays notified in the Gazette;

 The territories of the Commonwealth;

 The commencement, continuance and termination of hostilities between the

Government and any other State or body of persons;

 The names of the members and officers of the court, and of their deputies and
subordinate officers and assistants, and also of all officers acting in execution of its
process, and of all advocates and other persons authorized by law to appear or act
before it;

 The rule of the road on land or at sea.

It should be noted as follows;

 under section 56 (2) of the Act, that in all these cases and also on matters of public
history, literature, science or art, the court may resort for its aid to appropriate books
or documents of reference.

 Section 56 (3) states that if the court is called upon by any person to take judicial
notice of any fact, it may refuse to do so until that person produces any such book or
document as it may consider necessary to enable it to do so.

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  Section 57 of the Act states that no fact need be proved in any proceeding which the
parties to the proceeding or their agents agree to admit at the hearing, or which, before
the hearing, they agree to admit by any writing under their hands, or which by any
rule of pleading in force at the time they are deemed to have admitted by their
pleadings; except that the court may, in its discretion, require the facts admitted to be
proved otherwise than by such admissions.

E STOPPEL
Estoppel is a rule of evidence which precludes someone from denying the truth of a fact
which has been determined in an official proceeding or by an authoritative body. An estopple
arises when someone has done some act which the policy of the law will not permit him or
her to deny. In certain situations, the law refuses to allow a person to deny facts when
another person has relied on and acted in accordance with the facts on the basis of the first
person's behavior.

Under section 114 of the Evidence Act, when one person has, by his or her declaration, act or
omission, intentionally caused or permitted another person to believe a thing to be true and to
act upon that belief, neither he or she nor his or her representative shall be allowed, in any
suit or proceeding between himself or herself and that person or his or her representative, to
deny the truth of that thing. In civil suit No. 742 of 2004 Obed Tashobya v DFCU Bank
Limited it was noted that the rule of estopple requires;

(i) The making of a representation to the party to the proceedings.

(ii) That the party relies on the representation to his detriment.

(iii) That the party is himself not at fault.

Under section 115 of the Act, no tenant of immovable property, or person claiming through
that tenant, shall, during the continuance of the tenancy, be permitted to deny that the
landlord of that tenant had, at the beginning of the tenancy, a title to that immovable property;
and no person who came upon any immovable property by the licence of the person in
possession of that property shall during the continuance of the licence be permitted to deny
that that person had a title to such possession at the time when the licence was given.

Section 116 of the Act also provides that no acceptor of a bill of exchange shall be permitted
to deny that the drawer had authority to draw the bill or to endorse it; nor shall any bailee or
licensee be permitted to deny that his or her bailor or licensor had, at the time when the
bailment or licence commenced, authority to make the bailment or grant the licence.

Under Explanation 1, the acceptor of a bill of exchange may deny that the bill was really
drawn by the person by whom it purports to have been drawn.

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Under Explanation 2, if a bailee delivers the goods bailed to a person other than the bailor, he
or she may prove that that person had a right to them as against the bailor.

Examination of witnesses

Section 134 of the Act requires that the order in which witnesses are produced and examined
is regulated by the law and practice for the time being relating to civil and criminal procedure
respectively, and, in the absence of any such law, by the discretion of the court.

Under section 136 of the Act, the examination of a witness by the party who calls him or her
is called his or her examination-in-chief and the examination of a witness by the adverse
party is called his or her cross-examination.

The same section provides that the examination of a witness, subsequent to the
crossexamination, by the party who called him or her, shall be called his or her
reexamination.

Order of examinations under section 137 of the Act.

 Witnesses are first examined-in-chief, then (if the adverse party so desires) cross-
examined, then (if the party calling them so desires) reexamined.

 The examination and cross-examination must relate to relevant facts, but the cross-
examination need not be confined to the facts to which the witness testified on his or
her examination-in-chief.

 The reexamination is directed to the explanation of matters referred to in cross-

examination; and, if the new matter is, by permission of the court, introduced in
reexamination, the adverse party may further crossexamine upon that matter.

Section 138 of the Act requires that a person summoned to produce a document does not
become a witness by the mere fact that he or she produces it, and cannot be cross-examined
unless he or she is called as a witness.

Section 140 of the Act defines a leading question to mean any question suggesting the answer
which the person putting it wishes or expects to receive is called a leading question.

When leading questions must not be asked.

 If objected to by the adverse party or asked during an examination-in-chief, or in a

reexamination, except with the permission of the court. Note that the court only
permits leading questions as to matters which are introductory or undisputed, or
which have, in its opinion, been already sufficiently proved.

Under section 142 of the Act, the leading questions may be asked during cross-examination.

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Section 143 requires that Any witness may be asked, while under examination, whether any
contract, grant or other disposition of property, as to which he or she is giving evidence, was
not contained in a document; and if he or she says that it was, or if he or she is about to make
any statement as to the contents of any document, which, in the opinion of the court, ought to
be produced, the adverse party may object to that evidence being given until the document is
produced, or until facts have been proved which entitle the party who called the witness to
give secondary evidence of it.

Under the Explanation, a witness may give oral evidence of statements made by other
persons about the contents of documents if the statements are in themselves relevant facts.

Section 144 of the Act provides for cross-examination of a witness as to his or her previous
statements in writing where a witness may be cross-examined as to previous statements made
by him or her in writing or reduced into writing, and relevant to matters in question, without
the writing being shown to him or her, or being proved; but if it is intended to contradict the
witness by the writing, his or her attention must, before the writing can be proved, be called
to those parts of it which are to be used for the purpose of contradicting him or her.

Questions lawful in cross-examination under section 145 of the Act

 Which tend to test his or her veracity;

 To discover who he or she is and what is his or her position in life;

 To shake his or her credit, by injuring his or her character, although the answer to
those questions might tend directly or indirectly to incriminate him or her, or might
expose or tend directly or indirectly to expose him or her to a penalty or forfeiture.

Impeaching credit of witness under section 154 of the Act

The credit of a witness may be impeached in the following ways by the adverse party, or with
the consent of the court, by the party who calls him or her;

 By the evidence of persons who testify that they, from their knowledge of the witness,
believe him or her to be unworthy of credit;

 By proof that the witness has been bribed, or has accepted the offer of a bribe, or has
received any other corrupt inducement to give his or her evidence;

 By proof of former statements inconsistent with any part of his or her evidence which
is liable to be contradicted;

 When a man is prosecuted for rape or an attempt to ravish, by evidence that the
prosecutrix was of generally immoral character.

Under the Explanation, where a witness declaring another witness to be unworthy of credit
may not, upon his or her examination-in-chief, give reasons for his or her belief, but he or she

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may be asked his or her reasons in cross-examination, and the answers which he or she gives
cannot be contradicted, though, if they are false, he or she may afterwards be charged with
giving false evidence.

CORROBORATION

Means support or confirmation. With regard to the law of evidence, corroboration refers to
that certain where the evidence to be corroborated is confirmed by other independent
evidence i.e. corroborating evidence.

Corroboration therefore takes place where one piece of evidence confirms and support
another. It should be noted that corroboration may be required as a matter of law and
sometimes as a matter of judicial practice or caution.

Under section 40 (3) of the Trial Indictment Act Cap 23 provides that;

“Where in any proceedings any child of tender years called as a witness does not, in
the opinion of the court, understand the nature of an oath, his or her evidence may be
received, though not given upon oath, if, in the opinion of the court, he or she is
possessed of sufficient intelligence to justify the reception of the evidence and
understands the duty of speaking the truth; but where evidence admitted by virtue of
this subsection is given on behalf of the prosecution, the accused shall not be liable to
be convicted unless the evidence is corroborated by some other material evidence in
support thereof implicating him or her.”

Section 101 (3) (4) of the Magistrates Courts Act Cap 16 is quoted in the same terms as the
TIA.

The corroborated evidence has to be from an independent source lending support in some
material particular to the evidence being corroborated. Note that evidence that itself requires
corroboration cannot corroborate other evidence because both pieces of evidence would need
to be supported. A case in point is R v Baskerville (1916) 2 KB 658 where Lord Reading
stated that;

“We hold that evidence in corroboration must be independent testimony which affects
the accused by connecting or tending to connect him with the crime i.e. it must be
evidence which implicates him, meaning that the evidence which confirms in some
material particular , not only the evidence that the crime has been committed but also
that the accused committed it”.

The decision was followed by R v Manilal Iswelal Purchit (1942) 9 EACA 58 where is was
held that corroboration, which should be looked for is some additional evidence rendering it
probable that the evidence of the witness is true and it is reasonably safe to act upon it.
Further that it must be independent evidence which affects the accused by connecting him or
tending to connect him with the crime confirming in some material particular not only the

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that the crime has been committed but also that the accused committed it. Court further
emphasized that;

“It is of course not necessary to have conformation of all the circumstances of the
`crime. Corroboration of some material particular tending to implicate the accused is
enough and whilst the nature of the corroboration will necessarily vary according to
the particular circumstances of the offence charged, it is sufficient if it is merely
circumstantial evidence of his connection with the crime. Corroboration maybe found
in the conduct of the accused”

The issue principle is that corroboration in part corroborates the whole. Therefore, if a
material part of evidence is corroborated not only may that part of a witnesses’ evidence be
relied upon but also that part which is not corroborated the corroboration of a material part
being a guarantee of the truth of evidence as a whole. See R v Tarbhai Mohamedbhai
(1943) 10 EACA 60.

Corroboration as a statutory requirement

Although the general rule provided under section 133 of the Evidence Act is such that no
particular number of witnesses may be required to prove any particular fact in courts of law,
courts tend to insist on corroboration to ensure reliability of the evidence that has been given.
In most cases, the only eye witness is the complainant and at trial, the whole issue becomes
the complainant’s words against that of the accused. Thus courts needs corroboration to test
the reliability of that evidence.

We note that some statutes make corroboration in certain instances necessary. Where the
statutes states so, corroboration becomes a condition precedent to judgment. In other wards,
courts must get corroboration and cannot convict without it.

A judgment obtained contrary to statutory requirement for corroboration will always be set
aside on appeal. See sections 40 (3) TIA, sections 101 (3) & (4) MCA, sections 23 and 98
Penal Code Act.

In the case of Franscio Matovu v R [1961] EA 260 it was held that where a child is a
prosecution witness, the judge should direct the assessors and himself that the child’s
evidence requires corroboration.

In Okeyo Kigenyi v R [1965] EA 188 it was held that the court will as a rule quash a
conviction where no direction on the necessity of corroboration has been given in a case
where corroboration is required as a matter of law.

Corroboration as a requirement of judicial practice

Whereas there are a number of circumstances where the court may convict on the
uncorroborated evidence, certain circumstances have been identified by courts where
corroboration is a required as a matter of judicial prudence.

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However, the law does not permit the court to convict on the basis of certain kinds of
uncorroborated evidence without warning itself of the danger of doing so. What is mandatory
in these cases is an appropriate warning of the danger involved.

The absence of such a warning may be a ground of appeal and despite the use of the term rule
of practice or prudence, the requirement to warn has become a rule of law and mandatory.

The following categories requires corroboration as a matter of judicial practice;

Accomplice evidence

Under section 132 Evidence Act an accomplice is a competent witness against an accused
person and a conviction is not illegal merely because it proceeds upon uncorroborated
testimony of an accomplice. By statute, corroboration is not mandatory but courts insist on
corroboration because the evidence of an accomplice is arguably the most suspicious
evidence on which conviction may be based.

Note that accomplices are interested parties and they are generally infamous witnesses as a
result of which, their evidence is regarded as untrustworthy by courts. An accomplice is
likely to tell lies in order to shift guilt from him. In addition, as a partner in crime with the
accused, an accomplice is likely not value his oath and usually give evidence because of the
hope and promise to be pardoned or treated leniently by the prosecution. See Baskerville
case.

The question regarding who an accomplice is a question of fact. See Jethwa & another v R
[1969] EA 459.

Sexual Offences.

The evidence of the victim ought to be corroborated in some material particular. This is
because it is rare to have a direct witnesses apart from the complainant. In most cases the
only eye witness is the complainant and at the trial it is usually the complainant’s words
against that of the accused. Thus, courts needs corroboration to test the reliability of the
victim’s evidence and avoid the danger of deliberate false charges.

The rule was laid down in Chila v R [1967] EA 722 where is was held that the Judge should
warn the assessors and himself of the danger of acting upon uncorroborated evidence of the
victim. Having done so, the judge may convict in the absence of corroboration if he is
satisfied that there has been no failure of justice.

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The evidence of corroboration may be in form of medical reports, distressed state of the
victim, torn clothes, injuries on the body, immediate reporting of the assault. However, the
best corroborative evidence is the medical.

In Ngobi v R [1953] 20 EACA 56 a young girl was defiled and infected with STD. the
accused denied any knowledge of the child. A medical examination was done and found the
child infected with the same strain of STD as the accused. It was held that the medical
evidence was good corroborative evidence that the child was defiled.

Dying declaration

A dying declaration is a statement uttered by a deceased before his or her death the purpose
of which is to establish the cause of death of that person. As a matter of practice, the courts
would require corroboration.

The rationale for corroboration is premised on the fact that the physical or mental weakness
consequent upon approach of death render dying declarations dangerous kind of evidence.
There is no opportunity for cross examination and usually they are made in the absence of the
accused persons.

In Migezo Mibinga v R [1965] EA 71 it was held that although there is no rule that support a
conviction based on corroboration of statements made by the deceased person as to the cause
of his death, it is unsafe to base a conviction solely on them.

Further in the case of Mibulo Edward v Uganda SCCA No. 17 of 1995 the Supreme Court
of Uganda stated that;

“The law regarding dying declaration was restated by the supreme court recently in
the case of Tindigwihura Mbahe v Uganda Cr. App. No 9 of 1987. Briefly the law
is that evidence of dying declaration must be received with caution because the test of
cross examination may be wholly wanting; and particulars of violence may have
occurred under circumstances of confusion and surprise, the deceased may have stated
his inference from facts concerning which he may have omitted important particulars
for not having his attention called to them. Particular caution must be exercised when
an attack takes place in the darkness when identification of the assailants is usually
more difficult than in a daylight. The f act that the deceased told different persons that
the appellant was the assailant is no guarantee of accuracy. It is not a rule of law that
in order to support conviction, there must be corroboration of a dying declaration as
there may be circumstances which go to show that the deceased could not have been
mistaken. But is generally speaking very unsafe to base a conviction solely on the
dying declaration of a deceased person made in the absence of the accused and not
subjected to cross examination unless there is satisfactory corroboration”.

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It is therefore proper that some independent evidence be brought to lend support the dying
declaration in some material particulars.

Retracted and repudiated confessions

The validity or otherwise of a confession becomes an issue when the confession is challenged
in cases of repudiation or retraction. Repudiation means that the accused denies having made
the statement while retraction means that although the accused admits making the confession,
he wishes to challenge it on grounds of untruthfulness or involuntariness. Naturally, when
either of these scenarios arises, the confessions becomes suspect and should out of prudence
requires corroboration.

In Tuwamoi v Uganda [1967] EA 84 it was held that although a trial court may accept a
confession which is retracted or repudiated, caution must be taken that such a confession is
true. Court should only convict on a confession if corroborated in some material particular by
independent evidence accepted by the court.

Although corroboration is not necessary in law, the courts can only act alone on a confession
if it is fully satisfied after considering all material points and surrounding circumstances that
the confession cannot but be true.

Identification

Identification involves pointing out characteristics of a thing or person sought to be identified

for example, the manner of dress, sex, height, age, size, e.t.c. the problem arises where the
identification is from a single identifying witness. Since it is very easy for situations of
mistaken identity, it is for these reasons that courts always insist on corroboration.

the case in point is Abdullah bin Wendo v R (1953)20 EACA 166 where court held that
evidence of a single identifying witness may be sufficient although the court may not convict
in the absence of other circumstantial or direct evidence pointing to guilt from which a judge
or jury can reasonably conclude that evidence of identification although based on the
testimony of a single witness can safely be accepted as free from the possibility of error.

See Cleopas Otieno Wamunga v R Cr. App. No. 20 of 1982

Susan Kigula & another v Uganda SCCA No. 1 of 2004

Note that evidence of single identifying witness may be corroborated through any other form
of circumstantial or direct evidence.

Evidence of children of tender years

As noted unsworn evidence of a child of tender years requires corroboration as a matter of

law. However, where evidence is sworn, the judicial prudence requires it to be corroborated.

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The rationale is that although the child may not have any motive to deceive, they can easily
be coached and threatened.

See Oloo s/Gai v R [1960] EA 87 the judge relied on the evidence of the 12 year old child to
convict the appellant for murder. He did not warn himself or the assessors of the need to
corroborate the child’s evidence. The court of appeal held that it was erroneous for the judge
to rely on the uncorroborated evidence of the child even though it was sworn evidence.

See Bogere Moses v Uganda SCCA No. 1 of 1997 on sufficiency of corroboration.

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