Law of Evidence I: Lecture III

Desderius M Hekwe (Esq.)

+255714 238 092
RELEVANCY
[email protected]

Thursday, 19th day of November, 2023

LL.B II - MoCU: SR 7 Lecture Room
An Overview!
 One may not comprehend the term relevancy without
understanding the key concepts;

 Fact

 Fact in / at issue

 Because, courts of law are always concerned with

‘Facts of the case’ and ‘the means/ manner of proving
the same.
What is a fact?
Cont..!
 John H. Wigmore, A Students' Textbook of the
Law of Evidence;

 “A fact is any act or condition of things,

assumed (for the moment) as happening or
existing.”
The Black’s Law Dictionary
 A fact is something that actually exists; It is an
aspect of reality

 Facts include not just tangible things, actual

occurrences, and relationships…

 …but also states of mind such as intentions

and opinions.
Cont..!

 A fact is an actual or alleged event or

circumstance, as distinguished from its legal
effect, consequence, or interpretation.

 A fact my be direct or collateral: A collateral

fact is the one which is not directly connected
to the issue in dispute, esp. because it
involves a different transaction from the one
at issue.
The Evidence Act [Cap. 6 R.E 2022]

Section 3(1)
 A fact is anything, state of things, or relation
of things, capable of being perceived by the
senses;

 A fact is any mental condition of which any

person is conscious.

 Thus, it is something that may be perceived by

one’s common senses.
Jeremy Bentham
 He classified facts into two categories;

 Physical/ External Facts: Those that relates to certain

object, something that is in a certain order, at a
certain place. Capable of being heard or seen
certainly.

 Psychological/ Internal Facts: This include holding

certain opinion / intention/ acting in a particular style
either in good faith or fraudulently.
What is a Fact in Issue/ Fact at Issue?
 Also referred to as a ‘Principal Fact’ or ‘Factum
Probandum’

 This is the main issue that the court is always

concerned with. And in Trials, this is the remarkable
point of arguments or controversy.

 Facts which carries a cause of action. Those facts

which the plaintiff/ Prosecutor and or defendant/
accused must prove in order to succeed in a case.
 Section 3(1)
Evidence Act [Cap. 6 R.E 2022]
Cont..!

 Fact in issue is any fact from which, either by

itself or in connection with other facts…

 …the existence, non-existence, nature or

extent of any right, liability or disability,
asserted or denied in any suit or proceeding,
necessarily follows
Is the law of evidence responsible in determining
the nature and number of facts in issue in a
case?
 The nature and number of facts in issues in a case are
determined not by the law of evidence but;

 Partly by reference to the substantive law and

 Partly by reference to what the parties alleges, admits

and or denies in their pleadings.

 A fact in issue is the one out of which some legal rights,

liabilities, disability involved in the inquiry necessarily
arises and upon which a decision must be made by the
court.
Cont..!
 In civil proceedings, facts in issues are usually
identifiable by referring to the pleadings of the parties.

 The purpose: To identify factual and legal issues on

which parties agree/ disagree, for the court to know
what matters are in real dispute between litigants

 In criminal proceedings in which the accused person

pleads not guilty, the facts in issue are all those facts
which the prosecution must prove so that the accused
is convicted.
Cont..!
 However, Section 192 of the Criminal Procedure Act
[Cap. 20 R.E 2022] provide to the effect that;

 Any admitted fact in a memorandum of matters not in

dispute are deemed to be fully proved unless the court
hold a view that for the sake of justice it should be
proved by evidence.

 A fact in issue is the one which is open for

contradictory proof. Thus, when assumed to have been
proved it ceases to be a fact in issue.
What are the determinants for Facts in Issue?
Cont..!
 The respective substantive law under which a
claim is based

 Partly, from what the parties alleges, admits

and or deny, through their pleadings or
statement of claims.

 A fact in issues is the one which is open to

contradictory proof. When assumed to have
bee proved it automatically cease being fact in
issue
What facts are relevant?

‘Factum Probans’
Cont..!
 A relevant fact is also referred to as ‘Facts relevant
to the Fact in Issue’

 This is a fact upon which the existence or non

existence of a fact in issue may inferred from.

 The word ‘RELEVANCY’ determines whether one

fact is related to another, and a fact is relevant to a
case when t is related to the facts in issue.
 So,

What is Relevancy?
Cont..!
 Lord Simon defined the term relevancy in DPP v.
Kilbourne [1973] AC 729 at p. 756 in the term that;

 Evidence is relevant if it is logically probative/

disapprobative of some matters which require
proof…

 … IT IS THE EVIDENCE WHICH MAKE THE

MATTER WHICH REQUIRES PROOF MORE/
LESS PROBABLE
 Excerpt…

The Judiciary of Tanzania: Exhibits Management

Guidelines, 2020.
 The general principles governing admission of
exhibits in both civil and criminal proceedings
underscore factors including the following;

 Relevance: the exhibit is relevant if it tends to make a

fact that it is offered to prove or disprove either more
or less probable. For the document to be admitted it
must be both authentic and relevant to the fact in
issue. A document is authentic when it is written by
its supposed author and is genuinely and what it
purports or is asserted to be.

 See page 10 of Exhibits Management Guidelines.pdf

 Sir James Fitzjames Stephen

‘Recall stories … when Sir James Stephen returned

from India in 1872’
 Article 1 of his ‘Digest of the Law of Evidence’
defines the term relevancy as;

 ‘Any two facts to which if applied are so

related to each other according to the
common cause of events’

 A fact is said to be relevant if it is so linked to

another fact in the ways provided by the [Cap. 6
R.E 2022]
 Section 3(1)

Evidence Act [Cap. 6 R.E 2022]

 Defines the term ‘Relevant’ as;

 …in relation to one fact and another, means

the one is connected with the other in any of
the ways referred to in the provisions of this
Act relating to the relevancy of facts.

 The general rule is that evidence must confine to

the facts in issue. See, Section 7 [Ca. 6 R.E 2022]
Section 3(2) [Cap. 6 R.E 2022]

 A fact is said to have been proved;

 In criminal case: A fact is relevant when the court

is satisfied by the prosecution beyond reasonable
doubts that the fact do exist

 In civil cases based on the predominance of

probability
Seminar Queries on Relevancy
 Seven Rules for ascertaining relevancy of a
fact to the fact in issue as opined by Hon.
Judge G.P Mlata in his ruling..

 Criminal Session Case No. 12 of 2023 in

Republic V. Jafarri Hassani @Mdoe@ Abuu
Kishiki & 30 Others.

 Hon. Judge Mlata - Jaffari Case - The Concept

of Relevancy.pdf
 Hon. Judge G P Mlata’s assertions
 Unless evidence is barred by any rule or statute, if
that piece of evidence is material, relevant and
authentic is admissible in evidence

 Relevancy of facts to the fact in issue is assembled

through Seven (7) sources of facts. Thus, it cannot
be looked into a single piece of evidence but
connecting different piece from a witness or
witnesses

 The question and answer on whether certain fact is

relevant or not comes after assessment of all
adduced evidence and not otherwise
 Establishment of facts to the fact in issue is a
process of connecting different pieces of evidence
with the view of getting a complete story relevant
to the facts in issue for proving or disapproving
the matter

 The Court cannot determine and conclude in

between an issue of relevancy while there are
other witnesses not yet testified
 The process of connecting facts as per section
8,9,10 and 11 of the Evidence Act is complete at
the closure of hearing of the case.

 Therefore the court will be in a position to

assess and gauge relevancy of each of piece of
evidence to the facts in issue.
 Relevancy of Certain General Facts

[Section 7 to 18 of the Evidence Act [Cap. 6 R.E

2022]
Rationale behind Part I-Chapter II Cap. 6
 These provisions enumerate different instances in
connection between cause and effect which occur
most frequently in judicial proceedings.

 No fact can be given unless it be either a fact in

issue or one declared relevant under these
provisions.

 Thus, evidence of all collateral facts, which are

incapable of affording any reasonable presumption/
assumptions to the principal matter in dispute, is
excluded to save public time.
Justify, with authorities, the truth behind the
assertion that ‘Relevancy is the test for
Admissibility’
Illustrative facts for relevancy
 Ratanlal & Dhirajlal (2011) ‘Law of Evidence’ 24th Ed.

 A is tried for the murder of B by beating him with a

club with the intention of causing death. At A’s trial
the following facts are in issue:

 A’s beating B with the club;

 A’s causing B’s death by such beating;

 A’s intention to cause B’s death.

Cont..!
 Relevancy is explained in sections 7-18.

 These sections are widely designed in such a way

that they overlap to each other.

 Thus a motive for the fact in issue (s. 10) is part of its
cause (s.9), subsequent conduct influenced by it
(s.10 is part of its effect (s.9).

 For instance, facts relevant under section 13 would

in most cases be relevant under other sections.
The Theory or Doctrine of Res Gestae

[Section 8 Cap. 6 R.E 2022]

Cont..!
 Facts forming part of the same transaction.

 Thus, facts though not in issue, if they are

connected with a fact in issue as to form part of
the same transaction are relevant whether these
facts occurred at the same time and place or at
different times and places.

 A is accused of the murder of B by beating him.

Whatever was said or done by A or B or the by-
stander at the beating, or so shortly before or after
it as to part of the transaction is relevant fact.
Cont..!
 Res gestae imply things done, including words spoken
in the course of a transaction, but such facts must
form part of the same transaction.

 The term ‘Transaction’ means;

 A group of facts so connected together as to be

referred to by a single name as a crime, a wrong or any
other subject of enquiry which may be in issue.

 They range from physical acts and the words

accompanying such physical acts.
What are the underlying Principles: Res Gestae
Cont..!
 Contemporaneous: Thus, though acts which constitute
the transaction may occur at different times, yet time is
a crucial factor

 Ramadhani Ismail v. The Crown (1945) 7 Z.L.R.36, a

young child having been raped went home crying, only
two or three houses away, had some conversation with
her parents and then led her father to the house where
she had been assaulted. On arrival at the accused’s
house she said “That is the Bwana”.

 It was held that this utterance could not be considered

part of the re gestae.
Cont..!
 The declaration must be substantially
contemporaneous with the act i.e. made either during
or immediately before or after its occurrence, but not at
such an interval to allow fabrication or to reduce them
to mere narrative of past events.

 The fact itself must be in issue or relevant and the

declarations can only be used to explain the fact they
accompany.

 The facts must be the original evidence not exception

to the hearsay.
Cont..!
 The Republic vs Daniel Thomas and Another (Criminal
Session Case 42 of 2018) [2022] TZHC 10807 (04 March
2022);

 Richard Masanika and 2 Others vs Yeremiah Yesaya

Ibadu (Misc. Land Aplication 4 of 2021) [2022] TZHC
12144 (09 August 2022);

 Cosmas s/o Herman vs Republic (Criminal Appeal 72 of

2019) [2020] TZHC 815 (15 April 2020);
Facts Causing or Caused by Other facts

[Section 9]
Cont..!
 This provision admits large class of facts, connected
with facts in issue or relevant facts, though not forming
part of the transaction. They include;

 The occasion or cause of a fact

 As being it a fact

 As giving opportunity for its occurrence

 As constituting the state of things under which it

happened
Cont..!
 Facts relevant as giving occasion or opportunity

 The question is whether A robbed B,

 The fact that shortly before the robbery, B went to a fair

with money in his possession and that he showed it or
mentioned the fact he had it to third person is relevant.

 The fact constituting an effect

 The question is whether A murdered B

Cont..!
 Marks on the ground produced by a struggle at or near
the place murder was committed are relevant facts.

 Facts constituting the state of things under which

alleged fact happened

 The question is whether A poisoned B

 The state of B’s health before the symptoms ascribed to

poison, and habit of B known to A which afforded an
opportunity for the administration of poison are relevant
fact.
Cont..!

 In the case of Making & Wife v. A. G. for New South

Wales (1894) 17 Cox c.c. 704, the court said the
following;

 “It undoubtedly not competent for the prosecution to

adduce evidence tending to show that the accused has
been guilty of criminal acts other than those covered
by..

 …the indictment for the purpose of leading to the

conclusion that the accused is a person likely from his
conduct
Facts Relating to Motive, Conduct or Preparation

[Section 10]
Cont..!
 This provision mainly deals with three aspects:

 A fact which shows or constitute a motive for any fact in

issue or relevant fact.

 The acts constituting preparation for any fact in issue or

relevant fact

 The conduct of a person either previous or subsequent

to the offence.
Cont..!
 Motive: A is tried for the murder of B, the fact that A
murdered C that B knew A murdered C and that B had
tried to extort money from A by threatening to make his
knowledge public are relevant.

 Preparation: A is tried for the murder of B by poison.

The fact that before the death of B, A procured poison
similar to that which was admitted to B is relevant.

 Conduct: A is accused of a crime, the fact that either

before or at the time of or after the alleged crime, A
provided evidence which would tend to give to the
facts of the case..
Cont..!

 …an appearance favorable to himself, r that he

destroyed or concealed evidence or prevented the
presence or procured the absence of person who
might have been witnesses or suborned persons to
give false evidence respecting it, are relevant.

 In the case of John Makindi v. R [1961] E.A.327 the

evidence of a previous beating of the deceased by the
accused which had resulted in the latter’s conviction
was admissible under this section as showing a motive
which the accused had revenge on the deceased.
Facts to Explain/ Introduce Relevant Facts

[Section 11 Cap. 6 R.E 2022]

Cont..!

 This section makes admissible facts which are

necessary to explain or introduce relevant facts…

 ..such as place, name, and date, identity of parties,

circumstances and relations of the parties.

 Stanislai alias Kanyambo s/o Kitambo v. R. (1942) 258

 Said Juma Kanki & 88 Others versus Salumu Kondo

(Land Appeal 222 of 2021) [2022] TZHCLandD 696 (30
June 2022)
Things Said or Done by Conspirator in Reference to
Common Design

[Section 12 Cap. 6 R.E 2022]

Cont..!

 An inference is to be made to the provision of Section

23 of the Penal Code [Cap. 16 R.E 2022].

 When two or more persons form a common intention to

prosecute an unlawful purpose in conjunction with one
another, and in the prosecution of such purpose…

 …an offence is committed of such a nature that its

commission was a probable consequence of the
prosecution of such purpose, each of them is deemed
to have committed the offence.
Cont..!

 Ngigwana J - Mugisha Katulebe & 5 Other - Common

Intention.pdf
When Facts not Otherwise Relevant Become Relevant

[Section 13 Cap. 6 R.E 2022]

Cont..!
 Facts not otherwise relevant are relevant only;

 If they are inconsistent with any fact in issue or relevant

fact; or

 If by themselves or in connection with other facts they

make the existence or non-existence of any fact in issue
or relevant fact highly probable or improbable.

 See, Hon. Justice Mwambegele in Luthgnasia Simon

@Vumi v. Republic, Criminal Appeal No. 209 of 2019,
CAT (Moshi), 25th August, 2023
Cont..!

 Under this section any fact which either disprove or

tends to prove or disprove any claim or charge in a case
is made relevant.

 The Section is regarded as a ‘residuary provision’ for it

makes facts which are not otherwise relevant to be
relevant. These are the also referred to as ‘collateral
facts’

 But for such facts to be relevant in a case, there are two

mandatory conditions to be met.
 In suits for damages, facts tending to enable court to
determine amount which ought to be awarded are relevant

[Section 14 Cap. 6 R.E 2022]

Cont..!
 As a matter of practice and general rule, when a party
seeks for award of damages in a civil suit for instance,
such damages, let it be special or general…

 Shall be awarded by the court after consideration and

deliberation on the evidence on record that are able to
justify the award. For, in case of general damages, even
if the court have such discretional powers, but he must
assign reasons for the award.

 See, Hon. Judge Ngunyale in VRB Construction Co. Ltd

v. Deusdedith John Lwamlema, Civil Appeal No. 5/2019,
Hich Court of Tanzania (Mbeya).
Facts Affecting Existence of Right or Custom

[Section 15 Cap. 6 R.E 2022]

Cont..!
See, Hon. Judge Massati in Prismo Universal Italiana S.R.1
v. Termcotank (T) Limited, Commercial Case No. 42 of
2004, High Court of Tanzania (Commercial Division) at Dar
es Salaam
Cont..!

 Where the existence of any right or custom is in

question, the following facts are relevant;

 Any transaction by which the right or custom in

question was created, claimed, modified, recognized,
asserted or denied, or which was inconsistent with its
existence

 Particular instances in which the right or custom was

claimed, recognized or exercised, or in which its
exercise was disputed, asserted or departed from.
Cont..!

 For a custom to be valid it must be:

Ancient
Continuous and uniform
Reasonable
Certain
Compulsory and not optional
Peaceable and
Not immoral
Cont..!

 For instance, if some claim damages in a civil suit

based on custom and usage as provided for under
Section 73 Cap. 345

 Then proof of certain transactions and or instances is

relevant under the circumstances for being relevant.

 See the decision in Mwile Mugisha Mgallah

(Administrator of the Estate of the Late Daniel G.
Mgallah) v. Bertha J. Wandi & Another (PC Civil Appeal
16 of 2020) [2021] TZHC 9416 (17 December 2021)
Facts Showing Existence of State of Mind or of Body, or of
Bodily Feeling

[Section 16 Cap. 6 R.E 2022]

Cont..!
Cont..!

 When in a suit a person’s state of mind is at issue and

or a relevant fact, then such facts which tends to
explain or tell its existence is relevant.

 State of mind encompasses intention, knowledge, good

faith, negligence, rashness, ill will, good will, bodily
feelings.

 For instance, when a person is convicted of an offence

charged, his previous convictions are relevant. See,
Section 16(3) Cap. 6 and the rationale of mitigation in
criminal trial.
Facts Bearing on Question Whether act was Accidental or
Intentional

[Section 17 Cap. 6 R.E 2022]

Cont..!

 Mandimu is accused of fraudulently delivering to

Matimbula counterfeit coins.

 The question is whether the delivery of the coins was

accidental.

 The fact that soon before or soon after the delivery to

Matimbula, Mandimu delivered counterfeit coins to
Chaurembo, Chausiku and Mcharuko are relevant to
show that the delivery to B was not accidental
Existence of Course of Business When Relevant

[Section 18 Cap. 6 R.E 2022]

Cont..!
Cont..!

 The concern is on two things; The question relating to

existence of ordinary course of business, and when the
same is relevant in the proceeding.

 The principles is that, when the ordinary course of a

particular business is proved, the court is asked to
presume that on the particular occasion in question
there was no departure from the same

 Tanzalasa Limited v. Tractors Limited, Msc. Co. Cause

No. 11. 2022, HC (DSM – Commercial Division)