THE LAW OF EVIDENCE

Evidence is a branch of procedural law that enables parties to a case to establish, build up or
simply prove their cases. How different scholars have defined evidence

a) Taylor defines evidence as: “All legal means, exclusive of mere argument, which tend
to prove or disprove any matter of fact; the truth of which is submitted to judicial
investigation”

b) McKelvey States that: Evidence is any matter of fact from which an inference may be
drawn as to another matter of fact; the former fact is called the evidential fact; the
latter, the ultimate, main or principal.

c) Nokes’ definition is that Evidence means: “Judicial evidence consisting of

1. Facts which are legally admissible, and
2. The legal means of attempting to prove such facts.

d) Philpson states that evidence means “the testimony, whether oral, documentary or
real, which may be legally received in order to prove or disprove some facts, in
dispute”.

e) According to Cross, evidence is “the testimony, hearsay, documents, things, and facts,
which a court will accept as evidence of the facts in issue in a given case”.

f) To Best, evidence is “any matter of fact, the effect, tendency or design of which is, to
produce in the mind, a persuasion, affirmative or disaffirmative, of the existence, of
some other matter of facts”

g) Aguda adds that Evidence is “The means by which facts are proved but excluding
inferences and arguments”.

h) According to Stephen the term evidence means “The words uttered and things
exhibited by witnesses before a court of law.”

i) Blackstone states that “Evidence signifies that which demonstrates, makes clear or
ascertains the truth of the facts in issue.”
However, the Evidence Act, Cap.6 under Section 2 defines evidence to denote the means by
which any alleged matter of fact, the truth of which is submitted to investigation is proved or
disproved and includes statements by accused persons, admissions, judicial notice,
presumptions of law and ocular observation by the court in its judicial capacity. This
statutory definition is the most authoritative and acceptable of definitions.

The importance of studying the law of evidence

1. The law of evidence regulates the process of proof. The rule of civil and criminal
evidence, in conjunction with the rules of procedure, establish the frame work for the
process of proof and the conduct of litigation, so that a lawyer advising his client or
preparing his case for trial or presenting it to the court or tribunal will know what
issues his client must prove in order to succeed.

2. The law of evidence helps in establishing and regulating the rules relating to the
process of proof in proceedings in courts and tribunals.

3. The Law of evidence stands to protect the accused’s right to affair trial for instance, by
containing many rules which excludes potentially relevant evidences like the general
rule that evidence of the defendant's character and previous convictions will not be
admitted at trial.

4. The law of evidence also helps in shaping the process of proof, by helping to
determine the relevancy of evidence.

5. The law of evidence helps to guide in providing the determinants on how to reach a
just decision. That is to say by guiding on the nature of evidence that has to be
adduced for say in criminal law a conviction and/or an acquittal to be entered.

The Law of Evidence by its nature encompasses general principles regarding application, use
and production of pieces of evidence before a court of law for purposes of proving a case.

The basic legislation for the Law of Evidence includes the following:
1. The 1995 Constitution of the Republic of Uganda.
2. The Evidence Act Cap 6 Laws of Uganda.
3. The Evidence (Bankers Books) Act Cap 7 Laws of Uganda.
4. The Evidence (statements to Police Officers) Rules
5. The Oaths Act etc.
In a nutshell the Law of Evidence deals with;
1) Relevance and admissibility of pieces of Evidence.
2) Various categories of evidence

What is relevance?
Relevance is a term used with respect to the kind of evidence necessary to prove a particular
fact.

Relevance is basically determined by two factors.

1. Facts in issue (are relevant) i.e. all facts which are alleged by one party and denied by
the other.
2. Facts relevant to a fact in issue i.e. all facts which are related to the fact in issue that
they render the latter probable or improbable or throw light upon them.

Relevance is sometimes used synonymously with “connection.” The discussion of relevance

includes inter alia the principles of res gestae.
The term res gestae is used to connote of refer to acts, declarations and circumstances
constituting accompanying or explaining a fact in issue.
The general elements of res gestae are embodied under sections 5-14 UEA.

Elements of re gestae
S.5 Facts forming the same transaction.
R V. Premji Kurji (1940)7 EACA 58
The accused was convicted of murder of the deceased by use of a dagger. Evidence was
admitted of the fact that just prior to the death of the deceased; the accused had assaulted the
deceased’s brother with a dagger and had uttered threats to the deceased. After assaulting
the deceased’s brother, the accused said that he was going to show the deceased as well.
After killing the deceased he was afterwards seen standing on the body of the deceased.
Issue: whether the evidence of assaulting the deceased’s brother was relevant in proving the
murder.
Held: The two occurrences were so interconnected that they had to be regarded as res gestae.
That when the facts are so interwoven such as to form part of the same transaction, it was not
proper to shut out other evidence though it would introduce evidence of another offence.

S.6 Facts which are the accession, cause or effect of the fact in issue.
S.7 Facts constituting preparation, conduct previous or subsequent.
e.g. Uganda V. Kabandize [1982] HCB 94
Held: The conduct of the accused of running away immediately after the commission of the
offence and moving in a restless manner clearly showed a guilty mind.

S.8 Facts which explain or introduce a fact in issue. Facts which support or rebut an
inference.
The issue here usually whether there are other co-existing circumstances that could weaken
or destroy the inference of for instance, guilty on the part of the accused.
S.8 Facts which show identity
- Issues of single identification witness
- Identification parades.

S.9 Common intention.

Persons are said to have a common intention when there is a reasonable ground to believe
that two or more persons have conspired together to commit an offence or an actionable
wrong. Therefore, anything said, done or written by any such persons in reference to their
common purpose after the time when such intention was first entertained by anyone of tem
is a relevant fact as against each of the persons believed to be so.
Conspiring- This provision refers to conspiracies.

Birikade V. Uganda [1986] HCB 6

Held: To prove common intention, it is sufficient to infer from the actions of the persons
involved and the mere omission to dislocate oneself from the act suffices.

S.10 Contradictory and inconsistent facts.

The general rule is that if the inconsistences are not so fundamental so as to go to the root of
the case, then they will be ignored but if they are grave then they will be taken into
consideration by the court. (See Uganda V. Edirisa Ssali [1991] HCB 40 )
Also in Uganda V. Ngira Bakunzi [1988-90] HCB 40
Held: that the inconsistencies and discrepancies unless satisfactorily explained would usually
result in the evidence of a witness being rejected but minor inconsistencies would not have
that effect unless it pointed to honesty and truthfulness

See S.14 – Facts whether an act is accidental or intentional.

What is admissibility?
This refers to a process by which a court of law will accept or reject a particular item of
evidence.
Admissibility depends on whether an item of evidence is relevant or not. Therefore for an
item of evidence to be admissible, it must first be relevant. Admissibility also deals with the
question whether an item of evidence is excluded from being taken as evidence.

VARIOUS CATEGORIES OF EVIDENCE

Hearsay evidence
S.59 provides that oral evidence must in all cases be direct. I.e. if it refers to a fact that was
seen, it must be a witness who saw; if it refers to a fact that was heard then it must be a
person who heard and if it refers to a fact that was perceived by any other sense or any other
manner, it must be the person who perceived it. If it refers to an opinion then it must be by
the person who holds that opinion.
S.59 only permits admissibility of direct evidence and whatever is outside is hearsay.
Hearsay may be oral or written.
A statement in question is hearsay if made by that person who is not before court.
A statement is only hearsay if it is introduced for the purpose of establishing the truth of an
earlier statement and not for the purpose of establishing that the statement was made mere
repetition of words spoken may not amount to hearsay e.g. in defamation cases, undue
influence, intimidation, oral contracts e.tc.

The Rule against Hearsay

Laid down in R V. Gibson (1937)1 QB 537 as follows “Assertions told by a witness of what
some other person has told him concerning what he (some other person) has perceived are
inadmissible. This is an exclusionary rule that makes hearsay evidence inadmissible in both
Civil and Criminal proceedings.”

Exceptions
SS. 30-35 UEA
1. Dying declarations i.e. a stamen made by a person as the cause to his death or as to
any of the circumstances or the transaction which resulted in his death in cases in
which the cause of death of that person comes into question.
2.
A valid dying declaration must have the following elements.
a) Proof of death of the maker.
b) Completeness of the statement.
Waugh V. R [1950] AC 203
The deceased “he shot me because….” And died. The statement was not only incomplete but
also that no one could tell what the deceased was about to add.
 c) Free expression of the deceased i.e. deceased should not be asked leading questions.
d) Must be corroborated.

3. Statements made in ordinary course of business.

This consists of any entry or memorandum made and kept in books of account in the
ordinary course of business or in the discharge of professional duty or an acknowledgement.

4. Statements made against pecuniary or proprietary interests of the matter.

5. Entries of public and general rights
6. Statements relating to family affairs or pedigree.
7. Statements as to any law contained in law books printed or published under the
authority of government.

8. Admissions and Confessions.

In criminal cases, no statement by an accused person is admissible against him unless it is
shown by the prosecution that it is a voluntary statement in the sense that it has not been
obtained from him either by fear or prejudice or by hope of advantage. Voluntary
confessions are therefore admissible.

In Uganda the substantive law on admissions and confessions is contained U/SS.16 – 29A
UEA.
.
Swami V. King Emperor (1939)I ALLER 396
Lord Atkin stated that a confession must admit in terms either the offence or at any rate
substantially all the facts that constitute that offence.

Under Ugandan law (See S. 23 of the Evidence Act), the two-fold validity test of a confession is
(a) whether it was voluntarily made and (b) whether it was made to an officer who is above
the rank of an Assistant Inspector of Police (AIP). Having found that such a confession is
reliable Court has the discretion to determine how much weight to attach to such a
confession. (Zaake Walakira & Others V Uganda Criminal Appeal No. 008/2011)

If the confession is the main evidence against the accused then the court must decide whether
such a confession establishes the guilt of the accused with the degree of certainty required in
criminal cases. However, a trial court should treat with caution a retracted or repudiated
statement.

Retracted and repudiated confessions

In the case of Tuwamoi v Uganda [1967] EA 84 the Court of Appeal for Eastern Africa said:
that a retracted statement occurs when the accused person admits that he made the statement
recorded but now seeks to retract, to take back what he said, generally on the ground that he
had been forced or induced to make the statement, in other words that statement was not a
voluntary one. On the other hand, a repudiated statement is a denial that a statement was
made On the other hand a denial by an accused that a statement was made.

Corroboration
Corroboration is not necessary in law and the court may act on a confession alone if it is fully
satisfied after considering all the material facts and surrounding circumstances the
confession cannot be but true.

Corroborating evidence is evidence supplementary to, and tending to strengthen or confirm,

that already given. A judicial definition which includes the requirements of corroboration
was enunciated by Lord Reading in R. v. Baskerville (1916) 2 K.B. 658,667 (C.C.A.).:

“We hold that evidence in corroboration must be independent testimony which affects the accused by
connecting or tending to connect him with the crime. In other words, it must be evidence which
implicates him, that is, which confirms in some material particular not only the evidence that the crime
has been com-mitted, but also that the prisoner committed it.”

A valid confession must be voluntary.

DPP V. PingLin (1973) 3 ALLER 175
Held: That a confession had to be secured voluntarily but where abjection is raised in
criminal proceedings about confessions, the onus is on the prosecution (in a trial within a
trial) to satisfy the judge beyond reasonable doubt that the statement in question had been
made voluntarily.

Generally, torture, threats, inducements or promises of advantage to the suspect/accused

person would make a statement subsequently made by him inadmissible as a confession.

The procedure for obtaining a confession.

A confession must be made in as prescribed by law by an officer of or above rank of AIP
under charge and caution. The procedure for recording a confession was set out by
the Supreme Court in the case of Festo Androa Asenua & Another V Uganda SCCr.
Appeal No. 1/1998. The following procedure was adopted:

(1) It must be remembered that the prisoner is not on trial. It follows that such statement
 must not be taken in any court as part of court proceedings.
(2) No police officer should be present in the chambers of Magistrate. The police officer
escorting the prisoner should leave after informing the Magistrate of the reason for
taking the prisoner before him, that is, the offence with which he is charged or the
offence he is suspected of having committed, as the case may be. The police officer
should then wait outside the chambers out of sight.
(3) The Magistrate should inquire of the prisoner the language which he understands. If it
is one which the Magistrate does not know he should send for an interpreter.
(4) The charge, if any, or the nature of the suspicion for which he has been arrested, shall
then be explained to the prisoner.
(5) The prisoner should be asked if he wishes to say anything about the charge or the
offence he is suspected to have committed, and should be told that HE IS FREE TO
MAKE, OR NOT MAKE, ANY STATEMENT.
(6) The Magistrate must satisfy himself by all reasonably possible means that the
statement about to be made to him is entirely voluntary. It must not be assumed that
he is going to make a confession. The document containing the statement should be
prefaced by a memorandum containing notes of the foregoing and the steps which
the magistrate takes to satisfy himself that the statement is voluntary. This prefatory
part will enable the magistrate to refresh his memory, in the event of his being called
at the trial to prove the statement.
(7) It is advisable that a Magistrate who is about to take a statement should administer a
caution the normal form:
 "You need not say anything unless you wish but whatever you do say will be taken
down and may be given in evidence at your trial".
(8) The person wishing to make a statement should not be asked whether he wishes to be
sworn or affirmed; but if he requests the magistrate without suggestion from the
Magistrate, to place him on oath or affirmation, this may be done but the prefatory
memorandum must clearly state so.
(9) The statement should be recorded in the language which the prisoner chooses to
speak. This may be done through an interpreter or the magistrate may himself, if he is
fully conversant with the vernacular being used, record it in the same language.
(10) The prisoner is not to be cross-examined when he is making the statement. Any
question put to the prisoner must be designed to keep the narrative clear, and the
question so asked must be reflected in the statement. It must be understood that the
role of the Magistrate simply is to record accurately the prisoner's story, if he chooses
to make a statement.
(11) The vernacular statement should be read back to the prisoner incorporating any
corrections he may wish to make.
(12) The prisoner should certify the correctness of the statement by signing or thumb-
printing it. The Magistrate and the interpreter, if any, should counter-sign it. If the
statement covers more than one sheet of paper all sheets should be so signed or
thumb-printed by the prisoner.
(13) An English translation of the vernacular statement including the prefatory
memorandum, should then be made by the magistrate or the interpreter, as the case
may be.
(14) After the foregoing has been complied with the prisoner should be handed back to the
police Officer who has been waiting outside the Chambers.
(15) The originals of the statement - vernacular and its English translation should also be
handed over to the police
 .
(16) Section 24 speaks of "immediate presence of a magistrate". Any
Magistrate is competent to take a statement in the manner aforesaid. It
must be understood that the qualification of a Magistrate to take an
extra-judicial statement is a personal one, and is not tied to his
territorial jurisdiction.
(17) Whereas it is expected that the police will take prisoners before a
magistrate for this purpose during the usual working hours, he may
nevertheless be called upon at any time to take such statements. Should
this be after office hours the Magistrate should, move to his official
chambers, or, alternatively, sit at any other private place (excluding the
police premises) and, after procuring any -Civilian interpreter, should
one be necessary, and taking note of his name, profession and address
in the prefatory memorandum proceed to record the statement in
accordance with the procedure set out above.
(18) Care should be taken that as far as possible the magistrate who
takes such a statement does not subsequently try the prisoner".

The above procedure is applicable to a police officer recording a

confession. The Police should with necessary modifications follow these
guidelines when recording statements from suspects.

Judicial Notice
The general rule is that all facts in issue and relevant facts must be proved by evidence.
Judicial Notice means the acceptance by a court of law or tribunal of the truth of a fact
without proof on the ground that it is within the tribunal’s own knowledge.

The courts may take into consideration matters of common notoriety.

Judges/Magistrates are not supposed to take into account any personal knowledge that
they may have of private matters. As such the matters that courts take are Judicial
Notice of must be facts of a public or universal nature which are so well known that the
courts may require no further proof of them.

S.S5 – No fact of which the court shall take Judicial Notice need be proved.
S. 56 – tests matters which the court must take Judicial Notice of to include:
- Legal mattes e.g. all Ugandan Laws and all laws in UK which are enforceable in
Uganda.

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 - Constitutional matters e.g. accession and sign manual of the head of the
Common Wealth seals of all Ugandan courts, territories of the Common Wealth,
names and members of courts as well as other officers including advocates
authorized by law to appear before these courts.
- Customary matters.

EVIDENCE OF OPINION
Opinion is a statement as to what a person thinks about an alleged fact.
Matters of opinion are conclusions or inferences drawn by a person in reference to
particular instance.

The general rule is that opinions of witness as to the existence of facts in issue or
relevant facts are inadmissible because a witness o inion is likely to be partial and may
be influenced by matters of hearsay.
Exceptions to admissibility are covered under SS. 43-48 UEA which recognizes two
categories of opinion.
1. Opinion of experts.
2. Opinion of ordinary witnesses with respect to certain matters.

Expert Evidence
Admissible U/S. 43 UEA
When a court is to form an opinion upon a point of foreign law or science or art or as to
identity of handwriting or finger impressions the opinion of persons specially skilled in
such area are relevant facts.

Who is an expert? – Court decides who an expert is on the basis of:

1. Educational background.
Odindo V. R [1969] EA 12
Held: A Police Inspector was not an expert at all as he could not give his opinion as to
what he thought was the state of the accused state of mind and his level of intoxication
and ability to control a motorcar.
The doctors’ evidence on the other hand was admissible as he had the necessary
educational background to give an authoritative opinion.

2. Experience.
An expert witness may not necessarily have formal training in areas they testify upon –
R V. Silverlock (1894)2QB 76

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 Character Evidence
Character evidence is covered under SS-50-54 U/S. 5Q the word character includes both
reputation and disposition.

Character evidence may only be given as to general disposition and general reputation
but not of the particular acts by which reputation or disposition were shown.
Disposition refers to the general tendency of a person to act or behave in a particular
way.

Reputation on the other hand refers to the opinion of members of the public about a
particular person. It should therefore be an aggregate of the opinion or all the ideas of
members of the public.

Admissibility of character evidence will depend on the nature of the case – criminal or
civil.

The general rule under S.51 UEA is that bad character is irrelevant.
However bad character may be admitted U/S.52 (a) When the accused in his evidence
in chief brings his character in issue by giving responses that point to his good
character.
Maxwell V. DPP [1935] AC 309
Held: that prosecution was free to adduce evidence to show that the accused was not
what he claimed to be when he exposed himself to his character being questionable.

Character in Criminal Cases

U/S.50 UEA, in civil cases that the fact that the character of any person concerned is
such as to render probable or improbable conduct imputed on him or her is relevant.

In civil cases character may be admissible in cases of breach of contract to many, cases
in which the character of the person affects the quantum of damages e.g. in cases of
defamation.

Character of the defendant is relevant U/S.52 UEA e.g. in civil proceedings for
compensation in cases of adultery.
Under S.51 of the UEA, in criminal proceedings the fact that the person accused is of a
previous good character is relevant.
Under S.52 of the UEA, bBad character in criminal proceedings only relevant in
certain

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circumstances. In criminal proceedings, subject to section 133(2) of the Magistrates
Courts Act and section 98 of the Trial on Indictments Act, the fact that an accused
person has a bad character is irrelevant, unless—

(a) evidence has been given or a question or questions asked by the accused person
or his or her advocate for the purpose of showing that he or she has a good
character;
(b) the proof that he or she has committed or been convicted of another offence is
admissible evidence to show that he or she is guilty of the offence with which he
or she is charged;
(c) the nature or conduct of his or her defence is such as to involve imputations on
the character of the complainant or the witnesses for the prosecution; or
(d) he or she has given evidence against any other person charged with the same
offence as that with which he or she is charged.

S. 154 – provides for impeachment of credibility of a witness both in civil and criminal
cases.

BURDEN AND STANDARD OF PROOF

Generally burden of proof (BOP) denotes the obligation to prove a fact of facts. It may
the duty to adduce evidence at a certain stage or proceedings this is what is called the
Evidential Burden or Onus Probendi or Probative Burden. This burden can shift from
one party to another.

On the other hand BOP in the primary sense. This is what is called the Legal Burden or
Ultimate Burden. This means the duty to prove a case finally e.g. in criminal cases the
general rule is that the prosecution must prove the case and in civil cases, he who
alleges must prove his cases.

The general principles governing BOP are under Sections .101-113 UEA.

Facts especially/peculiarly within one’s own knowledge

The burden to bring a case within exception. Facts considered to be especially or
peculiarly within the knowledge of the accused place the burden on the accused to
prove their exitance. For example, possession of a license, a certificate or authorization.

When the Burden of Proof May Lie on The Accused Person.

The situations include;

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 ➢ The Defence of Insanity: the defence of insanity under Section 11 of the Penal
Code Act, requires the accused person who puts up the defense to bear the
burden of proving it. However, the standard of proof is on a balance of
probabilities and not beyond reasonable doubt.

➢ The defense of Intoxication: The burden of proof lies also on the accused for the
defence of intoxication in Section 12 of the Penal Code Cap 120 laws of Uganda.
In the case of Cheminingwa v R (1956) 23 EACA 192. At appeal, it was held that If
the accused seeks to set up the defence of insanity by reason of intoxication, the
burden of proof rests upon him to at least demonstrate the probability of what he
seeks to prove, but if the plea is merely that by means of intoxication he was
incapable of forming the specific intention required to constitute the offence
charged, it is an error for the trail court to rest the onus on the accused.

➢ The defence of Alibi also requires an accused to adduce evidence to prove his
alibi. See the case of Kanyolo Patrick V Uganda, (1990 93) IV KALR 53.

➢ There are also statutory exceptions where the burden of proof lies on the accused
person these include S. 59 of the wildlife Act Chapter 200 Laws of Uganda, which
requires anyone who kills an animal in the wild to prove they did so in self-
defense; Section 68(5) of the Mining Act Cap 148 laws of Uganda, requires a
person found in possession of minerals to prove he had a license or any authority
that permitted him to have possession of those minerals; S 70 and 71 of the
Children Act Cap 59 laws of Uganda requires anyone who alleges to have
parentage over a child to prove so.

STANDARD OF PROOF
This refers to the extent to which a party has to prove his case. refers to the extent to
which the party with the burden of proof has to prove its case (or an element of its
case). In general, the higher the stakes, the higher the standard of proof.

1. Criminal cases – beyond reasonable doubt

2. Quassi criminal cases e.g. matrimonial causes and cases involving fraud
although civil in nature – decided on a standard higher than a mere balance or
probability but below the standard in criminal cases.
3. Civil matters – balance or probability or preponderance of doubt.

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In criminal cases the burden of proof lies on the prosecution to proof the case beyond
reasonable doubt. This notion is guaranteed under Article 28 (3) (a) of the 1995
Constitution of the Republic of Uganda as amended that embeds the presumption of
innocence.

The said position was reaffirmed in the case of Woolmington V DPP (1935) ALLER 460
where it was held that; “It was wrongly held that the accused was guilty because he had failed
to prove that the killing was innocent. Court said that in criminal cases, it is always the duty of
the prosecution to prove the case against an accused beyond reasonable doubt that where a man
raises the defense of accident, he has already cast doubts on the prosecution case therefore the
prosecution has a duty to clear that doubt”.

In civil cases the burden of proof is on the person who wants to be believed. The
principle here is that he who asserts must prove on a balance of probabilities. Civil cases
therefore, the burden lies on the one who affirms rather than the one who denies. The
use of the word ‘asserting/ affirming’ was considered in the case of Joseph Constantine
Ltd v Imperial [1942] AC 154, where it was held that the burden lies on that person who
affirms and not the person who denies, but the term ‘affirmation’ is wide enough to
include every allegation, whether positive or negative.

In addition to that, Section 106 of the Evidence Act cap. 6, laws of Uganda is to the
effect that in civil proceedings, when any fact is especially within the knowledge of any
person, the burden of proving that fact lies upon that person.

For instance, in tax cases under the Section 103 of the Income Tax Act, the burden lies
with the tax payer to prove that the assessments are excessive and in divorce cases the
burden lies on the petitioners to prove that the existence of the legal grounds for
divorce and that there are basis in divorce proceedings

COMPETENCE AND COMPELLABILITY

The two terms are used with reference to witnesses.
Competence refers to the capacity of a person to give evidence in a court of law. There
are some categories of persons who may not be considered competent to testify in court.

The question of competence is governed under S.117 UEA– provides. 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

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questions by tender years, extreme old age, and disease either or body or mind or other
cause of the same kind.

Compellability on the other hand refers to the fact whether a particular witness can be
subjected to the compulsory processes of the court to make them to testify. The general
rule is governed U/S.131 UEA – A witness shall not be excused from answering
questions as to any matter related to a matter in issue in any suit in any civil or criminal
proceeding.

The principles of competence and compellability are better understood in the context of
the type or category of witness involves and the kind of evidence involved.

Categories of witnesses
1. Dumb witnesses – provided for under S.118 UEA – A witness who is unable to
speak may give his evidence in any manner in which he can make it intelligible
as by writing or signs made in open court – Hamisi s/o Salim V. R (1951)8 EACA
217.

2. Accused person and or parties to a suit – Generally speaking an accused is a

competent witness for the prosecution and the defense but he is not a
compellable witness to give evidence at his own trial. In civil proceedings the
parties are competent witnesses while in criminal cases, the accused is a competent
witness for the defence or for himself or herself, but he is not compellable to give
evidence at his trial. There are a number of options at the trial of an accused. The
accused can give evidence on oath by way of application; where he does so, the
prosecution can examine him. Cross examination is the only time during which
an accused person may be compelled to answer questions. See Section.131 of the
Evidence Act. And under the Constitution Article 28(3)(a). In practice, whether
an accused give sworn evidence or not, should not be used against him in
judgment.

3. An accomplice (under S. 132 UEA) is one charged with, but not for the same
offence as the accused. He or she is a competent witness against an accused
person and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. However, courts convict on
uncorroborated evidence of an accomplice. During trial, when a witness other
than the accused stands before court, such evidence must be on oath. See,

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 Nasolo V. Uganda [2003] See S.12 of the Oaths Act. And Section 132 of the
evidence Act Cap.6
Davies V. DPP (1954)1 AII ER 507 H.L Held. In a criminal trial where a person
who was an accomplice gave evidence on behalf of the prosecution. It was the
duty of the judge to warn jury that although they might convict on his evidence,
it was dangerous to do so unless it was corroborated. Is rule although a rule of
practice, now had the force of a rule of law and where the judge failed to warn
the jury in accordance with it, the conviction would be quashed.

4. Spouses S.120 UEA – In criminal proceedings, the wife or husband of the accused
shall be a competent but not a compellable witness for the prosecution and
whether the accused is charged alone or jointly with another person. The
rationale for this is to protect the confidentiality in marriage, It must be a
marriage recognized by the laws of Uganda. See Sections 120 and 121 of the
Evidence Act.

In civil proceedings, however, spouses are both competent and compellable. S.

121 of the Evidence Act- In civil proceedings, the parties to the suit and the
husband and wife of any party to the suit shall be competent and compellable
witnesses. Under S. 120 (a) – wife or husband of an accused person shall be a
competent and compellable witness for the defense.

5. Children of tender years All persons are competent to testify, however, under
s.117of the Evidence Act, a child of tender years may not be a competent witness
if by reason of his or her age, the child cannot understand the questions put to
him or her, or if s/he cannot answer rationally. For this category, they may not
always be considered as competent witnesses. Uganda v Arap Kohil V. R [1959]
EA 92 Held: The pharse “child of tender years” refers to any child of the average
or apparent age of 14 years.

Uganda V. Oloya [1977] HCB5 Held: When a court is confronted with a child of
tender years as a witness, it should question the child whether or not he or she
understands the nature of an oath. If the child does not then it will give unsworn
evidence but the court must determine in its own opinion whether the child is
possessed of sufficient intelligence to justify reception of their evidence and
whether the child understands the duty of telling the truth – voire dire.

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Privileged evidence
Situations where evidence is relevant, the witness is competent to testify but cannot be
compelled to do so on the ground that evidence enjoys certain privileges or that they
are not compellable to testify. For example;

1. Privilege of spouses
2. Professional privilege
For example, Journalists have privilege not to discuss the sources of their
information,
3. Under S.125 UEA – No advocate shall unless with the clients’ express consent
disclose any communication made to him in the course and for the purpose of his
employment as such.
4. No magistrates and judges under S.119 UEA except with some special order of a
court to which he is subordinate be compelled to answer any questions as to his
own conduct in court as such magistrate/judge.
5. S.122-23 UEA – 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 officer at the head of department.
6. S.121 UEA – No public official shall be compelled to disclose communication
made to him in the course of his duty when he considers that public interest
would suffer by the disclosure.

Marks V. Beyfus (1890)25 QBD 494 Held: A prosecution instituted or undertaken

by the DPP is a public prosecution and the DPP. If called as a witness at a trial
arising out of a trial is entitled to refuse to disclose the names of persons from
whom he has received information and the nature of the information received,
unless upon the trial of the prisoner the judge is of the opinion that the name of
the informant or nature or nature of information is necessary or desirable in
order to show the prisoners’ innocence.

ESTOPPEL
There is said to be an estoppel when a party is not permitted to say that a certain
statement of fact is untrue whether in fact it’s true or not.

It is a disability where a party is precluded from alleging or proving in legal

proceedings that a fact is otherwise than it has been made to appear by the matter
giving rise to the disability.

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It is a rule of exclusion making evidence of proof or disproof of a relevant fact
inadmissible. See Nurdin Bandali V. Lombank Tanganyika (1963) EA 304 at 314. It’s
called Estoppel because a man’s own act or acceptance stops or closes up his mouth to
allege or plead otherwise. Provided for U/S.114 UEA A typical example is res judicata –
referred to as Estoppel by judgment.

DOCUMENTARY EVIDENCE

This deals with the principles that govern admission of documentary evidence – SS.59-
99. This topic deals with:

1. Classification of documents.

2. Proof of execution or genuiness

3. Rules of proving content of documents.

4. Presumptions that underlay documents and

5. Lastly admissibility of extrinsic evidence to prove content of documents

otherwise known as parol evidence rules and exceptions thereto.

A document is defined in S.2 of the Evidence Act which describes a d.mt 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 the matter.

The single definition of documentary evidence means all documents produced for the
inspection of the court. Every recording upon any tangible thing, any form of
communication with representation by one of those means which may be used for the
purpose of recording any matter provided that such recording is reasonably permanent.

Under the law of evidence, the term d.mt means much more than it does in its ordinary
meaning e.g. it includes sign posts, tomb stones, photographs- (see Salau Dean V. R court
held that tapes recorded- English and interpreted. Gujrat were properly admitted. In R.
V. Magsud Ali (1968)2 All ER 464 Court said that tape recordings were admissible
evidence provided that the accuracy of the recording could be proved and the voices
recorded could be identified. Court observed that to hold the tape recordings were not
admissible as records would be to deny law access to advantages in development of
new technology. In Uganda V. Evarist Nyanzi – Tape recordings admitted.

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Classification of Documents

There are 3 basic types of categorization,

1. Attested documents as opposed to non-attested documents.

To attest means to witness any act or event and with regard to documents it means to
witness the signing or execution of a document

Certain documents are required by law to be attested e.g. under the Succession Act;
Wills must be attended by two witnesses. Under the RTA land transfer deeds must be
attested by an advocate with a valid practicing certificate. The above when complied
with make a document attested.

On the other hand, unattested documents are those that are not required by law to be
witnessed to be valid.

2. Private as opposed to public documents

S.72 Evidence Act gives a list of what constitutes public documents as documents
forming the acts or records of the acts of:

(i) Sovereign authority,

(ii) Of official bodies and tribunals,

(iii) Public officers’ legislature, judicial and exclusive whether of Uganda or any other
part of the common wealth or the republic of Ireland or a foreign country – all these are
referred to as public documents.

S.72 (b) – public records kept in Uganda of private documents.

As to far as private document are concerned, S.73 – All documents other than those
specified in S.72 are private.

S.66 and S.73 are not mutually exclusive. E.g. attested documents cannot be said not to
be private documents.

Under the registration of Documents Act (Cap 80) Laws of Uganda 1964 – its provided
under S.13 for registration of documents by individuals i.e. voluntary registration e.g.
partnership deeds. There’s no legal requirement for their registration. One of the
reasons for registration is safe custody in the registrar’s office. Under S.14 registration
provisions are not mandatory.

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Kafeero V. Turyagenda (1980) HCB 122

The Plaintiff sued the Defendant basing upon a document that the Defendant
contended that was not valid because it wasn’t registered. Court said that registration
provisions contained in Cap 80 are not mandatory but only voluntary and if parties do
not opt to register it will not render the document void. In addition, there’s no time
frame between which registration has to be done.

However, if it’s a document that has to be registered the non-registration affects its
validity and its enforcement is difficult. Although it remains valid as between the
parties e.g. under Company’s Act e.g. addresses of directors and addresses of a
Company and this amounts to an offence.

Tootal Broadhurst Company V Ahmed. (1950-51) 24 KLR 31 – distinguishes a private

from a public one. It was observed that the significance of the classification between
private and public revolves around the rule governing admissibility of the different
documents e.g. a public document may tender a certified copy thereof and court will act
on it while in a private document courts usually insist on the original to be produced.

3. Primary Vs. Secondary documents.

Basically, provided for under S.59-64 Evidence Act S.59- the contents of documents may
be proved by either primary or secondary evidence.

The meaning of ‘’Primary Evidence’’ has been set in in Section 61 of the Evidence Act
cap. 6 which define it to mean the document itself produced for the inspection of court”.
It goes ahead to give two Explanations hereunder;

Explanation 1: where a document is executed in several parts, each part is primary

evidence of that 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.

Explanation 2: where a number of documents are all made by one uniform process, as in
the case of printing, lithography, 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.

DPP of TZ V. Nathani (1966) EA 13. Nathani had been accused and convicted of fraud.
He had a license to sell Air tickets from the East African Airways in Zanzibar. He was

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alleged to have forged a ticket to main land Tanzania where it was claimed he had no
license to sell. The evidence adduced consisted of an EATA official agency list which
listed all agents authorized to sell tickets I East Africa. This was a cyco-styled volume of
the EATA official list it was proved that he had no license. He challenged the admission
of the list as arguing that secondary evidence and not primary. Held: that it was
primary evidence since it was one of a number of documents made by one uniform
process.

The word ‘primary’ derives from the latin word “Primo” meaning ‘first’ – original.
Primary evidence means the production in court of the original document itself that
contains the facts to be proved or for inspection of the court. Thus, an original
document or thing for instance, is the primary evidence itself. Primary Evidence
includes:

Primary evidence is also termed as ‘Best Evidence’ which requires the production in
court of the best evidence of which the nature of the case would permit. The best
evidence rule excludes, the testimony concerning the condition of a thing unless the
thing itself can be produced and Circumstantial evidence if direct evidence is available.

Secondary evidence on the other hand is defined under S.62 EA to mean and include:
a) Certified copies
b) Copies made from the original e.g. photocopies.
c) Counterparts of documents as against the parties that did not execute them.
d) Oral accounts of the contents of a document given by some person who has
himself seen it.

The general rule is that documents must be proved by primary evidence.

Exceptions to the general rule

S.64 lists the exceptions (circumstances) under which secondary evidence may be
admissible.
a) When the original is shown or appears to be in possession or power of a 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 any person legally bound to
produce it but does not.
b) When the existence, condition or contents have been proved to be admitted in
writing by a person against whom it is sought to be proved or by his
representative in interest.

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 c) Where the original has been destroyed or lost.
d) When the original is of such a nature as not to be easily movable e.g. a tombstone
signpost.
e) When the original consists of numerous accounts and other documents which
cannot be conveniently examined in court and the fact to be proved is the general
result of the whole collection.

Ref. Evidence (Bankers Books) Act Cap 7 Laws of Uganda.

Proof of Execution of Documents

This is an important aspect of Documentary Evidence because before a document is
admitted in evidence it must be proved to court that that document is genuine i.e. that it
was duly executed by the person(s) who appear on the face of the document as the
signatories. This principal was eloquently laid down in Stamper V. Griffin where court
said regarding genuiness of documents that “no writing can be received in evidence as
a genuine until it has been proved to be a genuine
S.69 – if the attesting witness denies or does not recollect the execution of the document,
then its execution may be proved by other evidence.

The other way of proof is under S.90 UEA which provides for the 30-year-old rule.
Documents that are 30 years old or more and which have been kept in proper custody
for 30 years or more then the document will be presumed to be genuine. Court may
allow one to produce a document under S.89 without going through S.66-69, S.89 is a
general section.

According to S.80 – An attested document which is not required by law to be attested

may be proved as if it were unattested.

S.72 – Court has power to compel one to make a sample of handwriting for purposes of
proof.

The best Evidence Rule

The general rule is that documents must be proved by primary evidence. That is to
say,any person who wishes to rely upon a document as evidence in his case must
produce an exhibit of the original document itself before court – S.63 Evidence Act
provides that documents must be proved by primary evidence except in cases

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mentioned in the Evidence Act. Courts insist on primary evidence because secondary
evidence cannot be tampered with.:

A number of authors have argued that the rule that documents must be proved by
primary evidence is based on the best evidence rule.

According to Elliot and Phipson on evidence the rule states that the best evidence must
be given which the nature of the case permits. Restated in Omychund V. Baleer (1954)
per hand writing “Judges and Sages of the law have lain it down that there’s but one
general rule of evidence the best that the nature of the case will allow.” In Brewster V.
Sewall – court stated the best evidence with regard to documents as follows:-

That the reason why the law requires the original instrument to be produced is that
other evidence is not satisfactory. That where the original instrument is in possession of
he party and where it’s in his power to produce it, if he does not produce it or take
necessary steps to obtain it’s production but resorts to other evidence, the presumption
is that he original document will not answer his purposes and that it will defer from
secondary evidence which he adduces.

The rule as far as public policy is concerned takes into account convenience, speed and
economy in the administration of Justice.

According to Wigmore, he advances two reasons for the best evidence rule as far as
documentary evidence is concerned. He says that as between the original and a copy,
the latter is bound to have inadvertent or willful errors on the part of the copyist.
Secondly as between the original and oral testimonial there are additional risks of errors
of recollection due to the difficulty of carrying in memory literally the whole of the
document.

Wigmore’s reasons have been supports in Vincent V. Paul (1828) – where the judgment
made the following observation “I have always acted most strictly upon the rule that
what’s in the writing shall be proves only by the writing itself. My experience has
taught me extreme danger of relying upon recollections of witnesses as to the contents
of written instruments that they may be so easily mistaken that I think the purposes of
justice require the strict enforcement of the rules.”

Historical origins of the rule:

The law of documentary evidence originated from the primitive way of trial by
documents where if a person produced a document it was viewed as almost sacrosanct
and that person won the case but however, if a person produced a copy of that

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document then that person lost. Only an original could stand out in court. But later this
was considered unfair; because of this a number of exceptions developed. Equitable
remedies developed – this was an order of discovery. This order is to the effect that if a
party wants to rely on a document then the other party can apply to court for an order
of discovery if its original in his possession. In addition, other remedies arose under s.64
of the UEA.

On the other hand, Secondary Evidence has been described in Section 62 of the
Evidence Act cap. 6 to mean and includes-
a) certified copies given under the provisions hereafter contained in.
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; and
e) oral accounts of the contents of a document given by some person who has
himself or herself seen it.

Secondary evidence is evidence other than primary evidence. It consists of the

repetition or reproduction in court of oral or written statements previously made out of
court. t is inferior to the primary evidence and it becomes, subject to certain conditions,
admissible when the primary evidence is lost or inaccessible.

Note that secondary evidence may be oral or in writing. Perhaps for this reason, legal
writers have described secondary evidence as a residue rather than as a class of
evidence.

When Secondary Evidence may be admissible.

The circumstances are set under section 64 of the Evidence Act, cap. 6;

1. 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;

2. 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;

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 3. 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;

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

5. When the original is a public document within the meaning of section 73;

6. 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;

7. 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.

The Evidence (Bankers Books) Act creates a number of privileges in favor of banks and
their books; firstly, it defines bankers’ books to include ledges, debt books, accounts
books, cash books and all others in the course of businesses of the bank. Before
proceeding under this Act what a bank is must be established i.e. one must be a bank.

S.3 provides specific modes of proof in entries in bankers’ books. That proof of entry
into bankers’ books may be proved by a copy thereof. But the copy must prove the
following requirements.

i. Must be verified as a true copy of the original.

ii. Under S.4 of the Act an officer of the bank must prove that the books in which
the entry is found was one of the order books of the bank and that the entry was
made in the order course of business.

S.6 creates privileges to bankers. That a banker is not compellable to produce

documents in his books or to appear as a witness about their contents in a case to which
he’s not a party unless the court orders him for a special cause.

Presumptions That Underly Documentary Evidence

Presumptions are provided for under S.4 Evidence Act.

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There are 2 kinds of presumptions: Rebuttable and Irrefutable presumptions.

S.4 (1) – Whenever it’s provided by this Act that the court may presume a fact it may
either regard such fact as proved unless and until it’s disproved or it may call for proof
thereof.

S.4 (2) – Whenever it’s directed by this Act that the court shall presume a fact it shall
regard such fact as proved unless and until it’s disproved.

S.4 (3) – When one fact is declared by this Act to be conclusive proof of another, the
court shall on the proof of the one fact regard the other as proved and shall not allow
evidence to be given for the purpose of proving it – irrefutable.

Specific presumptions:

1. These start from S.77 Evidence Act- the court shall presume every document
purporting to be a certificate 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 offices in Uganda is genuine provided that such document is
substantially in the form and purports to be executed when the manner directed
by law in that behalf.

Secondly under S.77 court shall also presume that any offices by whom any such
document purports to be signed or certified had the official character which he
claimed when he signed.

2. S.78 – whenever a document is produced before any court purporting to be a

record as memo of any evidence given in a judicial proceeding or before any
officer authorized 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 such document genuine and that
evidence recorded was the evidence actually given. The accused person should
not be injured as to his defense on the merits.

3. S.78 also has a presumption of genuineness of depositions. Magote s/o

Matofali V. R. (1953) 20 EACA 232 The case involved a deposition where court
said the original depositions transmitted to the H/C may generally be put in
evidence without further proof and there is no need to call the meeting of the
magistrate or clerk to prove them.

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4. S.79 – Has a presumption as to gazettes newspapers, any papers of Parl. Any
document that purports to be a gazette of common law country a newspaper or
any document purporting to be any Act of Parl. If printed by a government
printer then it will be presumed to be genuine.

5. S.80 (1) Evidence Act – When any document is produced before any court
purporting to be a document which by the law enforce by the time beg…n the
UK or the Republic of Ireland will be admissible in proof of any particular in any
court of justice in the UK or Republic of Ireland without proof of seal or stamp or
signature authenticating it or of a judicial or official character claimed by the
person by whom it purports to be signed, the court shall presume that such seal,
stamp or signature is genuine and the person signing it held the judicial or
official character which he claimed to possess when he signed i.e. if a document
is presumed genuine in UK or Republic of Ireland then it shall be presumed
genuine in Uganda. That the document must be admitted for the same purpose
for which it would be admissible in the UK or Republic of Ireland. Venn V. Venn
[1958] EA 264 Also see Tootal Broadhurst Co. V. Ahmed (1954) 24 EACA

6. S.81 has a presumption as to genuineness of maps or plans purporting to be

made by the authority of government i.e. they shall be presumed to be accurate
and made by the authority or government. Magote s/o Matogali – such sketches
of plans must be proved to be accurate.

7. S.82 – Presumption of genuiness of books purporting to be printed under the

authority of government of any country. These must be by the government
printer or a company commissioned by government e.g. Law reports.

8. S.83 – Private documents purporting to be executed out of Uganda e.g. if

authenticated by the notary public, his signature and seal of office.

9. 83(c) – Any document executed in any country of the common wealth should be
authenticated by a notary public, his signature and seal of Resident Magistrate
Permanent head of government department or resident commissioner or
assistant commissioner of any such country. If a document outside the common
wealth Republic of Ireland the document must be authenticated by the offices of
the Foreign Service outside Uganda.

10. S.84 – Presumptions as to powers of attorney. If a document purports to be a

power of attorney and purports to be executed a d authenticated by a notary

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 public or any court magistrate judge or any representative of any government
of the Common Wealth was so executed and authenticated.

11. S.85 – Certified copies of any records of any country outside of the Common
Wealth if they are certified by a judicial officer of the Common Wealth or if they
are certified – a manner this is commonly used in that country.

12. S.89 – Presumptions as to documents which are 30 years old. When any
documents purporting or proved to be 30 years old or more is produced from
any custody which the court considers to be proper in the particular case the
court may presume that the signature and every other part of such a document
which purports to be in the hand writing of a particular person is in that person’s
hand writing and executed and attested by such persons by whom it purports to
be executed and attested.

Explanations: The documents are said to be in proper custody if they are in a place in
which and under the case of the person with whom they’d naturally be that no custody
is improper it it’s proved to have had a legitimate origin or if the circumstances of the
particular case are such as to render such origin probable.

Parole Evidence Rules or Exclusion of Oral by Documentary Evidence

This concept addresses the issue weather extrinsic evidence is admissible to prove or
carry the terms of contained in a document. The general principal is that if there’s a
written document other evidence to substitute or to vary or contradict the document
terms is not admissible. This principle mainly applies in two situations: -

1. Contracts that have been decreased to writing – in this case the terms of the
contract must be proved by reference to the document itself no oral evidence to
vary or to contradict those terms is admissible stated in Kilonzo s/o Kanyanya V.
Pastrutam Bros, (1933) 16 KLR 44.Court held that when the terms of a contract
have been reduced in terms of a document e.g. a bill of exchange no evidence is
recoverable as to the nature of the contract and that no Oral evidence is
admissible to vary terms of such a contract..

2. Applies with regard in transactions required by the law to be in writing e.g.

under the SGA, S.7 (1) Sale of goods above the value of UGX200/= should be in
writing Contracts of guarantee must be in writing and therefore can only be
proved by the document itself. Money lending contracts – Damodar Jamadas

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 [1961] EA 615 V. Noor Mohammed Valji [1959] EA 615 Also see Choitram V.
Lizar [1959] EA 157

Exceptions
1. Where a public officer is required by law to be appointed in writing, the writing
by which he is appointed need not be proved.
2. Wills admitted to probate in Uganda may be proved by probate.
3. Under section .92 Any fact may be proved which would invalidate any
document e.g. fraud, intimidation, illegality, want of any contracting party, want
or failure of consideration or mistake or factor law.
4. S.92 (b) Existence of any separate oral agreement as to any matter on which a
document is silent and which is not inconsistent with its terms. (See Hansen V.
Metha [1959] EA 563
5. Under S.90 (a) the existence of any distinct subsequent oral agreement to rescind
or modify any such contract, grant or disposition of property.
6. Wills admitted to probate in Uganda may be proved by the probate. [so one does
not need to produce the will itself but produce the probate because it’s granted
after proof of the will and containing the seal of the High Court]

7. S.92 (a) – 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 due execution, want or failure of
consideration or mistaken in fact or law. (see Patel V. Patel [1940] 19 KLR 41–
deals with illegality initiating a contract). This was a suit on a bond. There was
Agreement that the contract was in fact a money lending one and that since the
Plaintiff was not licensed as required by law and that the consideration was
unlawful. The Plaintiff argued that the evidence was inadmissible. Held:
Evidence admissible to prove that the interest recited in the bond was unlawful
and the bond therefore void.

Twentshe overseas Trading Co. V. Kariji [1960] EA 810 – Failure of consideration.

Uganda produce Timber Co. V. Registered Trustees [1934] 10 EACA 24 – This case
is about mistake

8. S.91 – When the terms of a Contract or a grant or of any other disposition of

property have been reduced in form of a document and in all cases in any matter
where law requires it to be reduced in form of a document, no evidence save as
in S.78 shall be given to prove terms of such contract, grant or other disposition

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 of property or of such matter except the document itself or secondary evidence is
admissible under the Act.
9. S.91 – When the terms of any such contract grant or other disposition of property
or any matter required by law to be reduced in form of a document have been
proved according to S.90, no evidence of any oral agreement or statement shall
be admitted as between the parties to any such agreement or their
representatives in interest of the purpose of varying, adding or subtracting from
its terms.

This issue was considered in Folkes V. Thaikrar (1959) EA 36 The respondents

were guarantors for a sum of money. It was alleged that the respondent who
were directors of the company had on 18th/4 guaranteed to pay for goods issued
to them by the appt that they promised to sign a written guarantee and that such
guarantee was issued on 22/5 bearing the same date. At trial the appt sought to
establish that the guarantee was signed not on 22/5 but on April before the first
consignment. The trial judge ruled oral evidence inadmissible. The issue was
whether that evidence was admissible to prove that guarantee signed before the
date involved. Held: The date was not a term of the contract therefore oral
evidence could be admitted to prove that the date appearing on the document
was not a correct date.

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