LAW OF EVIDENCE

Questions & Answers

Charles H. Mwaihojo (LLB, LLM, MBA)

(Asst. Lecturer at Kampala International University, DSM)

0713-144090/0765-062629

Charles H. Mwaihojo (LLB, LLM, MBA)

(Asst. Lecturer at Kampala International University, DSM)

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1. What is do you understand by the term evidence in law. explain various types of evidence you
know
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal
proceeding. These rules determine what evidence must or must not be considered by the Trier of fact in
reaching its decision and, sometimes, the weight that may be given to that evidence. Thus it within this
introduction I intends in this question to give the concept of evidence and finally to explain it types.

Evidence, broadly construed, is anything presented in support of an assertion. This support may be strong
or weak. The strongest type of evidence is that which provides direct proof of the truth of an assertion. At
the other extreme is evidence that is merely consistent with an assertion but does not rule out other,
contradictory assertions, as in circumstantial evidence.

according to section 3 of the TEA provides that evidence denotes the means by which an alleged matter of
fact, the truth of which is submitted to investigation, is proved or disproved; and includes statements and
admissions by the accused person.

not only that but also Phipson on Evidence defines evidence as (a) the means, apart from argument and
inference, whereby the court is informed as to the issues of fact as ascertained by the pleadings; (b) the
subject matter of such means (at 2)

Furthermore, Black’s Law dictionary defines Evidence as something (including testimony, documents and
tangible objects) that tends to prove or disprove the existence of an alleged fact (at 595)

Moreover Murphy on Evidence defines evidence as any material which tends to persuade the court of the
truth or probability of some fact asserted before it (at 1)

In short I can say that Evidence is mainly concerned with facts and not the law. It is a means of proving that
a certain fact is either truthful or not/ in existence or not Note that some material may satisfy the definition,
i.e. they may persuade the court of the truth of a fact before it, but they are excluded by some laws or rules,
e.g. a sale agreement for which stamp duty hasn’t been paid as required by the law. It is not the truth of the
matter that counts but the evidence.

In connection to the above pints one can say that in law, rules of evidence govern the types of evidence
that are admissible in a legal proceeding. Types of legal evidence include testimony, documentary
evidence, and physical evidence. other types including

Oral Evidence: this is evidence given by speaking. Under section 3 of the TEA defines this as “all
statements which the court permits or requires to be made before it by witnesses in relation to matters of
fact under inquiry. In other words, this consists of oral statements of witnesses, made in open court, offered
as evidence of the truth of that which is ascertained. Oral evidence is usually given on oath or affirmation.
Another type is Documentary Evidence: under section 3 of TEA defines this as all documents
produced as evidence before the court. It may also be referred to as evidence afforded by any document
produced for the inspection of the court.

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 Another type is Real Evidence: This is Physical evidence. Denotes any material from which the court
may draw its own conclusions or inferences using its own senses. Includes material objects, animate or
inanimate, produced in a court of law as evidence.
Another type is hearsay evidence: this refers to statement made by a person other than by a witness
giving evidence in court. In other word we call it second hand information.

Direct Evidence is another type of evidence. Direct evidence requires no mental process on the
part of the court in order to draw the conclusion sought by the proponent of the evidence, other than the
acceptance of the evidence itself.

Another type is circumstance evidence: Circumstantial evidence on the other hand requires the court
to not only accept the evidence, but to also draw inferences/ conclusions from it. In other words, it is
evidence based on inference and not on personal knowledge of information. E.g. X is charged with robbing
a bank, and is seen by Y running from the bank clutching a wad of bank notes. Y’s evidence that he saw X
running from the bank clutching a wad of notes is direct evidence, while the circumstantial evidence is that
X robbed the bank. The court must thereby draw inferences from the facts perceived by Y I.e. X’s running,
clutching notes.

To wind up the above explanation one can be in better position to the concept of evidence and its types
by focusing on the above presentation.

2. Write comprehensive notes on the following

a) Relevance of fact
b) Alibi
c) Judgment in rem
a) Relevance of fact

Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or
disprove one of the legal elements of the case, or to have probative value to make one of the elements of
the case likelier or not.
Thus the word relevance of fact one can define as "Relevant evidence" means evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.
Relevant Evidence: is evidence that makes a fact more or less likely to be true than it would be without
the evidence (looking for probative value). Under section 3 of TEA provide provision for "relevant" 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. It further provides 2) a fact is said to be proved
when a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied
by the prosecution beyond reasonable doubt that the fact exists; and (b) in civil matters, including
matrimonial causes and matters, its existence is established by a preponderance of probability.

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 To conclude, one can say that relevant fact is evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence. These facts may also be described as facts from the existence or non
existence of which a fact in issue may be inferred. This is also known as circumstantial evidence. In Woolf
vs. Woolf, (CA)1, it was held that proof of the fact that a couple, who were not married to each other,
occupied the same bedroom was clearly probative (relating to proof) of an allegation that they had
committed adultery, and of the existence of the time of an adulterous relationship.
b) Alibi
An alibi is a form of defense used in criminal procedure wherein the accused attempts to prove that he
or she was in some other place at the time the alleged offense was committed. The Criminal Law Deskbook
of Criminal Procedure2 states: "Alibi is different from all of the other defenses; it is based upon the premise
that the defendant is truly innocent." In the Latin language alibī means "somewhere else."
Evidence in support of an alibi is defined in section 6A(3) Criminal Procedure and Investigations
Act 1996 (CPIA) as evidence tending to show that: by reason of the presence of the defendant at a
particular place or, in a particular area at a particular time.
The above point can be illustration in the case of Mkika v Republic 3 where the appellant observe
that judge did not consider the appellant's defence of alibi. But all in -all therefore, the court find no merit in
this appeal. It is dismissed in its entirely.
In RASHID SEBA v. THE REPUBLIC4 the principle of identification as stated in Waziri Amani V.R5, in
which the Court underscored the need for a court to eliminate all possibilities of mistaken identity and
ensure that such evidence of identification is water-tight. The principle of cognizance of the defense. Here
the Court in reference with section 194(4), (5) and (6) of CPA said that where the Court fails to take
cognizance of an alibi it amounts to a mistrial and a consequential miscarriage of justice.
This also provided under section 194(4),(5) and (6) of Criminal Procedure Act. It refers to the
evidence that proves that an accused person was in another place at the time of commission of an offence
and so could not have committed it. In the case of Charles Samson vs. Republic6, the Court of Appeal of
Tanzania held that where the Court does not take cognizance whatsoever of alibi, both in summing up to
the assessors and in the judgment, it amounts to mis-trial and a consequential miscarriage of justice.

c) Judgment in rem
By a judgment affecting the status of a particular thing (as an item of property) or subject matter or a
judgment rendered by a court exercising in rem jurisdiction compare personal judgment in this entry.
In rem (Latin, power about or against "the thing" 7 is a legal term describing the power a court may exercise
over property (either real or personal) or a "status" against a person over whom the court does not have "in
personam jurisdiction." Jurisdiction in rem assumes the property or status is the primary object of the

1
[1931] 134
2
R. v. Cleghorn, [1995] S.C.R. 175 at para. 3
3
(Criminal Appeal No. 47 of 2001) [2003] TZCA 2 (1 August 2003)
4
High Court of Tanzania at Tabora) Mwita J. Criminal Appeal No. 138 of 2003
5
1980]TLR 250
6
1990] TLR 39

7
Garner, Bryan (2006). Black's Law Dictionary. St. Paul, MN: Thompson/West. p. 362.

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action, rather than personal liabilities not necessarily associated with the property (quasi in rem
jurisdiction).

3. B is charged with the murder of A far meters away from a Pombe shop. Evidence
is sought to be adduced that A was found on the ground with wounds on the back
of his head. C came to his aid and A faintly said to him my old friend B did this to
me”. C wishes also to testify that a month before A died B asked him of A’s
drinking habits. Define the admissibility of what C intend to testify.

The question is all about defining the admissibility of what C intends to testify before the court.
Generally, admissible evidence is evidence which a court of law will receive for purposes of determining the
existence or non existence of a fact in issue. Black’s Law dictionary defines admissible as “capable of being
legally admitted; allowable, permissible” thus admissibility is a matter of law, to be determined by the Court.
All evidence that is sufficiently relevant to prove or disprove a fact in issue and which is not excluded by
any of the exclusionary rules of evidence is admissible in evidence.
Basing on the above fact our duty here is to see whether the statement or testimony under which
want to testify that he came to his aid and A faintly said to him my old friend B did this to me” and C wishes
also to testify that a month before A died B asked him of A’s drinking habits.
To say in short the evidence wishes to produce by C is relevant and admissible under section 9 of TEA
Cap 6 R.E 2002 which provides that “Facts which are the occasion, cause or effect, immediate or
otherwise, of relevant facts or facts in issue or which or constitute the state of things under which they
happened, or which afforded an opportunity for their occurrence or transactions, are relevant”.
This section may be summarized as follows: All facts and events leading up to (before), accompanying
(during), and following (after) the transaction in issue, which are so inseparably connected with each other
as to throw light to the matter in issue and help its proper understanding, are relevant.
To support the above point let me give Illustrations as follows:
a) The fact in issue is whether Adam murdered Andrew. Marks on the ground, produced by a struggle
at or near the place where the murder was committed are relevant facts. The marks are a fact that
constitutes “the state of things under which they happened”, i.e. the murder was as a result of a
struggle, which Andrew resisted.
b) the fact in issue is whether Jane poisoned John. The state of John’s health before the symptoms
brought about by the poison, and the habits of John, which Jane knew, and which “afforded an
opportunity” for the administration of poison are relevant facts.
c) “Which afforded an opportunity” While opportunity is always relevant, the Court must guard
against jumping to the conclusion that a person committed a crime just because he/she had the
opportunity to.
E.g. A female servant was charged the murder of her employer. No person was in the house during the
commission of the offence, and doors and windows were locked and secured. The accused was convicted
and executed on the assumption that no one else had access to the house. Afterwards, the real murderers
confessed that they had gained entrance into the house, by means of a board thrust across the street from
the upper window of the neighbouring house to the upper window of the house in which the deceased lived,
murder the woman and retreated the same way, leaving no traces behind them.
To wind up the above explanation one can note that in all situations, this evidence must be
supported by other evidence and an accused cannot be convicted from this type of evidence alone. And
our fact in question is relevance and admissible under section 9 of Tanzania Evidence Act Cp 6 RE 2002.

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 4. Using the provisions of the Law of Evidence Act [Cap 6 R.E 2002]
Discuss the relevancy and therefore admissibility and weight of the following
pieces of evidence:
(a) Mjanja a cashier at an uptown supermarket in Dar es
Salaam,is accused of stealing money from her employer Mr.Shop-
owner. The prosecution wishes to produce payment vouchers and
copies of the cash book folios for the past two years as evidence.
(b) Daiwaka is accused of causing an accident while driving a commuter
bus. The conductor of the bus Konda, states that the driver has been in
violation of traffic rules several times that day and he is an
inexperienced driver. At the trial the prosecution wishes to rely on the
statement of Konda.

ANSWER:
a)
The law under section 18 of TEA provides that “When there is a question whether a particular act
was done, the existence of any course of business, according to which it naturally would have been done,
is a relevant fact”. Thus basing on the above fact one can say that the fact are relevance and admissible
under section 18 as it illustrate hereinafter explanation.
The question is whether a particular letter was posted from destination A, the facts that it was the
ordinary course of business for all letters put in a certain place to be carried to the post, and that the
particular letter was put there, are relevant.
Course of business: this means the ordinary course of trade/business, and covers both private and
public offices. In most well established offices or firms, books are kept business done in conducted in a
general course.
In short this section 18 deals with delivery of latter entries in official record, entries in books of
accounts and execution of orders of court as per section 122 of TEA.
Thus basing on above illustrated the evidence wishes to produce by prosecution side who wishes
to produce payment vouchers and copies of the cash book folios for the past two years as evidence is
relevant and admissible.

b) answer

In this fact, the prosecution wishes to rely on the statement of Konda who states that the driver has been in
violation of traffic rules several times that day and he is an inexperienced driver. In law this statement is
relevant and admissible under section 16 of TE Cap 6 RE 2002 which provides that Facts showing the
existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill will or
good will towards any particular person, or showing the existence of any state of body or bodily feeling, are
relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.

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 This section applies where the question of means rea is in issue. It basically admits two factual
situations. a) It admits facts showing the existing of state of mind 8 and b) It admits question of previous
convicted by the accused of similar offence9
The section makes it clear that the existence of state of mind must be in reference to a particular matter.
Not generally, but as showing the confession of the accused himself or by inference rather from
circumstantial evidence10 for instance X is accused of defaming Z by publishing an imputation intended to
harm reputation of Y. the fact that there was so previous quarrel between X and Y and that X repeated the
matter complained of as he heard it are relevant, to show that X did not intend to harm the repetitions of Y.
To support the above point let us observe these cases. For example, in R v. Douglas Allan
Godfrey11, the issue was whether the accused was driving negligently. The prosecution sought to adduce
evidence that the accused was drunk before drinking. The court allowed this evidence of drunkenness to
show the physical or mental state of the accused in committing the traffic offence. As to the second point of
previous commission or conviction, the law is that such precious commission or convicted of an offence
must be relevant to show the existence of state of mind or intention in relation to present offence and not to
prove that since he committed the precious offence he must have necessarily committed the present
offence.
In Makin V A. G. for the south vales 12 the accused and his wife adopted an infant who was
believed to be nine (9) months old. They killed and buried it is in the back yard. The body of the infant was
found together with other bodies of children. The persecution sought to produce evidence to the effect that
previously the accused killed other children and therefore it was not accidental. The defense objected that
the previous commissions were not relevant. It was held that;It is undoubtedly not competent for the
prosecution to adduce evidence tending to show that the accused person has been quietly of criminal acts,
other than those covered by indictments for the purpose of leading to the conclusion that the person is
likely from his crime conduct or character to have committed the offence which he is being tried.
Thus, to windup the above explanation one will agree with me that the evidence wishes by
prosecution to produce before the court is relevant and admissible under section 16 of TEA Cap 6 RE
2002.

5. Critically discuss the difference between ‘relevance’ and ‘admissibility’ and

explain how these terms apply in the law of evidence.
The question is all about discussing critically the difference between ‘relevance’ and ‘admissibility’ and
explains how these terms apply in the law of evidence. Thus the forthcoming discussion I am going to give
the concept of relevance and admissibility and to show how it is applying in the law of evidence.
Generally admissibility refers to whether or not certain evidence could be admissible in court, at trial.
Evidence is subject to a variety of rules in order to be admissible. Relevance refers to whether or not the
evidence matters. That the evidence be relevant is one of the requirements of admissibility.
To make its distinction I am giving six points on each, which differentiate another. Starting with
relevancy I can say that:-

8
Section 16(2) of TEA
9
Section 16(3) of TEA
10
(1961) EA 327
11
(1970)12 KLR 44
12
(1894)AC 57

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 1. Relevancy of facts: One fact is said to be relevant to another as the one is connected with the other
in any of the ways referred to in the provisions of the Tanzania Evidence Act, Cap 6 RE 2002
relating to the relevancy of facts.
2. Relevancy is based on logical probative.
3. The relevant facts are explained in the Act from Sections 7 to 57
4. The rules of relevancy declare certain facts relevant. \
5. What is the material fact which may be produced before a court in a proceeding is a last question.
6. Example: A promissory note is relevant fact, even though it does not contain the prescribed
stamps, and court fee.

Admissibility:

1. “Admissibility: The term “Admissibility” means that which is acceptable in evidence.

2. The admissibility is not based on logic, but on law and strict rules.
3. The admissibility is explained in the Act Sections 19 to 26
4. The rules of admissibility lay down as to whether a certain form of evidence about relevant fact
may be allowed or excluded.
5. The admissibility is the means and the method of proving the relevant facts.
6. Example: A promissory note is not admissible in evidence if it does not contain the prescribed
stamps and court fees.

In the law of evidence, all facts which are relevancy to the fact in issue (factum Probandum) and legally
admissible are evidence, in order for a fact to be admissible it must be legally relevant. A fact is relevant if it
is connected to another fact of the fact n issue in the way provided by the evidence Act. Facts which are
relevance to an issue or fact in issue are those facts are necessary for proof or disapprove of the fact in
issue however feeble.
Legally relevant fact are therefore admissible if are relevant to the fact in issue 13 what is fact? One can
say that is anything that one can see, or hear or establish through experiments or scientific test or things
done, act performed, an accident happen in time or space, mental of physical. To be admissible a facts
must relevant or related to the fact in issue.
While what is fact in issue? This is the fact which has to be proved, eg murder, conspiracy to defraud
existence of the contract etc. Thus in applying this two term fact and fact in issue must be put in
consideration.

6. With the aid of authority determine the relevancy and admissibility of the fact that
Chapombe is charged for murder of Kazembe by poisoning. Chaumbea who is
Kazembe’s neighbor wants to testify that four days before the fateful day of
Kazembe was in sound health and in addition, Chapombe was always drinking
soda and “chama choma” (barbecue) with Kazembe in Chaumbea’s out-pub.

Refers to question N.03

7. “All confession are admission but all admission are not confession” Discuss

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 The question is all about discussion on distinction between confession and admission. Thus the
forthcoming discussion I am going to discussion by giving vividly example on the concept of these two
terms.

According to Black’s Law Dictionary, a confession is “a criminal suspect’s oral or written

acknowledgement of guilt, often including details about the crime.”14 According to this definition, it might be
reasonably inferred that one cannot confess to a civil wrong. While both concepts may refer to the same
sort of speech act by the speaker, an admission is to be used in reference to civil litigation whereas a
confession is to be implemented in reference to criminal litigation.

Confessions, as a source of evidence, are distinguished from admissions. Whereas a confession is a

complete acknowledgement of guilt in criminal proceedings, an admission is a statement of fact in either a
civil or a criminal case.

The Tanzania Evidence Act of 1967 deals with the provisions of admission and confession. Section 19-
26 of Tanzania Evidence Act [Cap 6 RE 2002] states about the admission and its relevancy and section
27 -33 of the same Act describes the confession. Going through these sections we may differentiate them
as following-

Admission is a matter of civil suit but confession is a matter of criminal case. A statement oral or
documentary admitting a fact arising from, and relevant to the civil suit is called admission whereas an
admission made before the Judicial magistrate by an accused stating or suggesting that he has committed
the crime for which he has been made accused.

Admission may be of both kinds i.e. oral or documentary but confession must be ora l. Under
section 19 the Act defines admission as is a statement, oral or documentary, which suggests any inference.
For example An admission might be “yes, I was at the crime scene” but a confession might be “yes I was at
the crime scene and yes I was the one who shot the accused”.

Other distinction of admission and confession are summaries as follows

 All confessions may be recognized as an admission but all admissions are not
confession.
 Admission is a genus whereas confession is a species.
 An admission may be made from any of the party of the civil suit but a confession must
be made by accused.
 Admission is taken according to the procedure stated in Civil Procedure Code Cap 33
whereas Confession is taken according to the procedure stated in section 164 of
Criminal Procedure Act Cap 20

There may be another difference regarding the concern sections of Tanzania Evidence Act Cp 6
RE 2002 about confession and admission. Section 19-26 of this Act describes about admission whereas
section 27-33 describes about confession. So, these are the general differences between admission and
confession in the light of the Tanzania Evidence Act of 1967.

14
Black’s Law Dictionary, 9th edition, (2009) at 338. It might be noted that the definition
does not make essential to the meaning of a confession the exposition of the details of the
crime confessed to.

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 Thus, to wind up the above discussion, one can say that the difference between the two concepts
rests not with the speech acts themselves but with the legal context within which the speech acts are
employed. To state the differences differently, according to the above, the distinction between an admission
and a confession is not intrinsic to the act of assuming responsibility but rather to what sort of responsibility
is being assumed.

8. Write short notes on the following

a. involuntary confession
b. Repudiated confession
c. Retracted confession
SOLUTION
a) involuntary confession
This means an admission, especially by an individual who has been accused of a crime that is not freely
offered but rather is precipitated by a threat, fear, torture, or a promise. An involuntary confession is a confession
obtained where the installation of fear or a promise of benefit, related to the legal consequences as regards the
accused, conveyed by another for the purpose of obtaining the confession, has so acted on the will of the confessor
as to fetter the freedom of choice on the matter of whether he or she should confess.
In section 27(3) of Tanzania Evidence Act provides that a confession shall be held to be involuntary if the
court believes that it was induced by any threat, promise or other prejudice held out by the police officer to whom it
was made or by any member of the Police Force or by any other person in authority.
In the case of Burdge v. State,15 discus the matters preliminary to the admission of evidence for the court,
but where court is in doubt about the matter, it may leave the question to the jury, relying on Massachusetts case).
While in the case of State v. Powell, 16 appeal dismissed, where the trial judge disbelieves the defendant's testimony
as to voluntariness, he may leave the issue to the jury; preliminary hearing in presence of jury is discretionary.
In the case of State v. Bodi, the judge, in his discretion, may determine voluntariness or allow jury to
decide whether the confession is voluntary and trustworthy. While in another case called State v. Nunn, the trial
judge is not finally to determine whether a confession is voluntary, but is to determine whether the State's proof
warrants a finding of voluntariness; if so, the jury can consider voluntariness in determining the weight to be afforded
the confession).

b) Repudiated confession
Repudiated confession means a statement made by the maker ever or reject that he never made the
statement.
A statement is repudiated where the maker avers that he never made it, while a statement is retracted
where the maker admits that he made the statement, but now seeks to take it back on the ground that he was
forced/induced to make it, and it was therefore not voluntary. In Tuwamoi v. Uganda, the court stated that it is
dangerous to rely on a repudiated or retracted confession, unless the court after considering the facts of the case
arrives at a conclusion that the confession is true.

c) Retracted confession
15
53 Ohio St. 512, 42 N.E. 594
16
105 Ohio App. 529, 148 N.E.2d 230,

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 The word retracted literally means to draw back or to reject an earlier statement. Retracted confession
means a confession which has been withdrawn or rejected later on by the accused who made it. If it is proved that a
confession, though retracted, was originally made voluntarily, can be acted upon along with the other evidence.
in other word retracted confession means a statement when the confessor says he was force to make it or
when he says what is provided in the statement is not what he meant
In the case of Vinod Solanki vs. Union of India, it was held by the Honorable Supreme Court of India that
a confession, when retracted, does not automatically mean that it has become useless. The burden is then on the
prosecution to satisfy the Court that the confession is voluntary and not the outcome of coercion, threat or
inducement coming from the person in authority. The legal position is well settled.

9. Mjanja who is a plain clothed Police inspector suspect Kibaka of having broken
into the shop of Kazembe and stolen goods therefrom. Mjanja then goes to Kibaka
and tells Kibaka, falsely, that he, Mjanja is anxious to find the thieves who broken
into Kazembe’s shop so that he can buy some of the stolen articles and intimates
to Kibaka that he, Mjanja could keep the whole thing secret. Thereupon Kibaka
tells Mjanja he is the person who broke into the shop and stole the articles there
from and promises to sell same of the stolen articles to Mjanja provided that
Mjanja keeps his secrecy. Is Kibaka’s confession are admissible in evidence?

The question is all about confession. thus in the forthcoming discussion I am going to explain and discuss
whether Kibaka’s confession are admissible in evidence or not.
The issue arise from above fact is whether there is confession, and that whether the confession was
voluntarily or involuntary and finally to show the circumstance and applicable or exception to the general
rule on involuntary or voluntary confession.
By definition confession means a direct acknowledgement of guilty. According to Phipson a confession
is a type of admission in relation to crime. And according to Wigmore confession is an acknowledgement of
guilt in express words by the accused while in the case of Swami v. King Emperor state that “No
statement that contains self exculpatory (incriminating) matter can amount to a confession, if the
exculpatory statement is of some fact, which if true would negative the offence alleged to be confessed.
According to R v. Bampamiyki 17 a statement should be regarded as a confession only when it
contains ingredients of the crime with which the accused person is charged, so that the accused person
could be properly convicted on his own plea.
According to R v. Makrch18 the court argued that “we think that the test is whether the statement is
such that in the absence of any explanation or qualification and in particular circumstances, it points clearly
to the guilt of the maker. Thus, statements “I killed him” or “I took the money” unaccompanied by any
exculpatory statements and uttered in relation to a person who has died of unnatural causes or missing
funds as the case may be are in our view indicative of guilt and therefore a confession.
17
(1957) EA 473
18
(1971) HCD 74 (High Court of Tz)

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 The position of law of evidence as provides in section 27(3) a confession shall be held to be involuntary
if the court believes that it was induced by any threat, promise or other prejudice held out by the police
officer to whom it was made or by any member of the Police Force or by any other person in authority.
Not only that but also a confession made to a police officer is admissible, provided the prosecution
proves that it was voluntarily made (S. 27). A police officer means any member of the police force of or
above the rank of corporal (s. 3). In the 1967 case of R v. Mwanda and others, the High Court of Kenya
held that the rank of the police officer is a ready measure of intelligence, and thus it was relevant where
confessions are concerned.
In Bampamiyki s/o Buhile v. R19, the accused had been charged with murder, whereby a house had
been burnt down and two people died in the fire. The accused made a confession to a police officer that he
had burnt the house. The Court of Appeal held that the confession was inadmissible in the murder charge.
However, in section 29, the law provides that No confession which is tendered in evidence shall be
rejected on the ground that a promise or a threat has been held out to the person confessing unless the
court is of the opinion that the inducement was made in such circumstances and was of such a nature as
was likely to cause an untrue admission of guilt to be made.20
According to the above position of the case law and law I am in position to say that the confession of
Kibaka is admissible under section 29 of Tanzania Evidence Act. A confession shall be held to have been
made involuntarily if the court believes that it was induced by threat, promise or other prejudice held out by
the police officer to whom it was made, or any member of the police force, or any other person in authority.
The inducement must however have been of such a nature as likely to cause an untrue admission of guilt;
otherwise the confession will be admissible.
This can be also illustrated in the case of Rochin’s Case21 where a police officer forcefully put a
stomach pump into the prisoner through his anus to see whether the prisoner took drugs. The prisoner
confessed that he was involved in a drug racket. It was held that though the interrogation was done in
barbaric way, yet the confession was admissible as evidence.
The test here as to whether the statement was voluntary is whether the accused is placed in such
a situation or position that he would rather give an untrue rather than a true statement. In the Case of
Njuguna S/o Kimani v. R22, the EACA stated that where an accused is promised pardon as an inducement
for a confession of guilt, the effect of the inducement is to make the freedom which will accompany the
false confession more attractive at the moment than to remain restrained if he were to speak the truth.” The
Court also emphasized that the onus is upon the prosecution to prove that a confession had been
voluntarily made and not obtained by improper questioning.
However a moral or spiritual exhortation will not vitiate a confession. In the case of R v. Wilde23
Criminal Cases 45, the following statement was made to Wilde: “I hope you tell me the truth in the presence
of the almighty”, after which he made a confession. The confession was held not to have been made under
a threat. In R v Stantan, the statement made to the accused was “be a good girl and tell me the truth”. It
was held that moral exaltation could not vitiate a confession.

19
(1957) EA 473
20
Section 29 of Tanzania Evidence Act (Cap 6 RE 2002)
21
(1952)342 us 165
22
(1954) 21 EACA 3111
23
(1835) 1 Mead

12
 To conclude where an inducement has been made to an accused person, and a confession is made
after the impression caused by the inducement has in the opinion of the court been fully removed; the
confession will be accepted by the court as per section 30 of Tanzania Evidence Act.

10. Jambazi no. 1 agreed to supply Jambazi no. 2 with one packet of explosive
sufficient to blow up a bridge. On receipt of the packet Jambazi no 2 with some
other person utilized it on October 2011 for the purpose of blowing up the said
bridge. The attempt proved unsuccessful as the fuse did not work. On October 11,
Jambazi no. 2 sent a letter to Jambazi no. 1 describing the unsuccessful attempt
and asked for other packets of explosives. After this both were arrested and
charged. Determine whether the letter written by Jambazi no. 2 is relevant and
admissible evidence against Jambazi no 1.
The question is all about conspiracy cover under section 12 of the Tanzania Evidence Act of 1967.
Thus in forthcoming explanation will base on the concept of conspiracy and to determine whether the letter
written by Jambazi No. 2 is relevant and admissible evidence against Jambazi No 1.
As above introduction says, the position of law under above fact covers under section 12 0f TEA which
provides that “where there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, anything said, done or written by any one of such
persons referring to or in execution or furtherance of their common intention, after the time when such
intention was first entertained by any one of them, is a relevant fact as against each of the persons believed
to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of
showing that any such person was a party to it”.
The section strictly requires the presence of a reasonable ground to believe that the two or more
people have conspired to commit an offence. This means that there should exist prima facie evidence to
support the existence of the conspiracy. E.g. Where an accused person, and the person who shot dead the
deceased were seen talking in isolation before the shooting and avoided questions as to what they were
talking about was held to be sufficient to create a reason to believe that they might have been conspiring
about something. Only a reasonable ground of suspicion is requires because as stated in R vs. Golkadas
Kanji Karia16 EACA 116, “it is rare for the conspirators to meet together and execute a deed setting out
the details of their unlawful purpose. It is common place to say that an agreement to conspire may be
deduced from any acts which raise the presumption of common plan.”
Even after the termination of the conspiracy, anything written, said or done will still be relevant to prove
the conspiracy. Furthermore, a person who joins a conspiracy will be responsible for all acts, whether done
before or after his participation as per Stanley Msinga & another v. R 24.
Thus to sum up the above explanation one will agree with me that the letter written by Jambazi no. 2 is
relevant and admissible evidence against Jambazi no 1.

24
(1951) 8 EACA 211

13
11. “In the English law of evidence acts, declarations and circumstances constituting,
accompanying or explaining a fact or transaction in issue are said to form part of Res gastae
and evidence of them is admissible”. Analyse this statement in relation to the provision of the
TEA
The question is all about the doctrine of Res gastae rule. Thus the forthcoming discussion I am going to
analyse the statement in relation to the provision of the TEA.
It is true that In the English law of evidence acts, declarations and circumstances constituting,
accompanying or explaining a fact or transaction in issue are said to form part of Res gastae and evidence
of them is admissible. The same position of Tanzania Evidence Act under section 8 which provides that
“Facts which, though not in issue, are so connected with a fact in issue as to form part of the same
transaction, are relevant whether they occurred at the same time and place or at different times and
places”.
In Tanzania’s law it is provided under section 8 of TEA which provides that facts which, though not in
issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether
they occurred at the same time and place or at different times and places.
To illustrate the above provision I can use these illustration that (a) The question is whether certain goods
ordered from Ben were delivered to Benjamin. The fact that the goods were delivered to several middle
persons successively are relevant facts. Each delivery to a middle person is a relevant fact, which may be
proved through evidence, although the fact in issue is whether the goods were delivered from Ben to Benji.
(b) The fact in issue is whether Patience murdered her boss Priscilla. The fact that shortly before the
murder Patience was seen by the neighbour running after Priscilla with a knife in hand is a relevant fact
which may be proved in evidence (e.g. foot prints). The fact in issue is not whether Patience ran after
Priscilla with a knife, but whether she killed Priscilla. The chase is only a relevant fact.
In R vs. Premji Kurji25, the deceased had been killed with a sword. Evidence at the trial was that
immediately prior to his death, the accused had assaulted the deceased’s brother with the sword and said
threatening things to the deceased. The accused was convicted and he appealed, one of the grounds of
appeal being that the evidence of the assault on the deceased’s brother should not have been admitted
under the principle of res gestae.
It was held that the evidence was properly admitted because: - a) The two occurrences were so
closely interconnected that the wounding of deceased’s brother must be regarded as part of res gestae on
the trial of the accused on the murder of the deceased and b) The fact that the accused had a sword and
had used it immediately before the killing must be admissible as strong evidence of the opportunity to
commit offence charged.
Although the facts which constitute the transaction may occur at different times, time is a crucial
factor. The incident claimed to be part of the res gestae must have occurred when the transaction is
ongoing, and not when it is complete.
In Ramadhan Ismail v. The Crown26, the accused was charged with rape. The victim was a young
girl, who rushed home in tears and informed her parents. She took her father to the house, found R and
25
(1940) 7 EACA 58
26
(1950) 7 ZLR Page 36

14
pointed out and said that the man was the one that had raped her. It was held that these utterances could
not be considered as forming part of the res gestae because “when it comes to a matter concerning res
gestae, minutes are of the utmost importance.” This decision followed the decision in the case of R vs.
Bedingfield.
In R vs Bedingfield 27, where Bedingfield was charged with the murder of a woman. The lady, who
had been inside with Bedingfield, rushed out of the house, with her throat was slit open, and bleeding, and
exclaimed, “Oh dear Auntie, see what Bedingfield has done to me.” In the trial of Bedingfield for the murder
of the woman, it was held that although statements made while the act is being done are admissible, the
victim’s statement could not be received as evidence because “it was something stated by her after it was
all over and after the act was completed.”
In Ratten v. R28, Ratten was charged and convicted of murder of his wife by shooting her. His
defence was that his gun had accidentally gone off while cleaning it, and that she died because she was in
the bullet’s path. During the hearing, evidence was given that the shooting took place between 1.12 pm and
1.20 pm. Further evidence was given by a telephone operator to the effect that at about 1.15 pm, she
received a telephone call from Ratten’s house which was being made by a hysterical woman in fear saying
“Get me the police”. One issue at the trial was whether this evidence was admissible under the doctrine of
res gestae.
It was held that the evidence was admissible as part of res gestae because not only was there a close
association in place and time between the statement and the shooting, but also the way in which the
statement was made (hysterically) and the tone of voice used showed that the statement was being forced
from the wife by an overwhelming pressure of contemporary (current) events.
Thus the foregoing was all about the doctrine of res gastae rule in common law compare to the
position of res gastae rule under Tanzania evidence law. The positions as seen above are the same, no
different on two.

12. In light of the provisions of the Evidence Act (Cap. 6 R.E. 2002), discuss the admissibility of the
evidence in the following facts.
(a) Mwakikao is accused of having robbed Msigwa on 10th October, 2007. Two witnesses
testify that on the evening of the said date, all of them at different times saw Mwakikao
drinking beer excessively and that contrary to his usual behaviour he was offering
everyone a drink at Miomboni bar.

27
(1879) 14 COX C.C Page 341
28
(1972) AC 378

15
 (b) Semkiwa is accused of obtaining money by false pretence. It is alleged that he draw a
promissory note in favour of Mary while knowing he would not be able to pay.
Evidence is brought to show that he was recently convicted of a similar offence after
he had drawn a false cheque in favour of Juma.
(c) X is charged with the murder of Y. The prosecution wants to bring evidence to show
those two days before Y’s death, X was seen at the local pombe shop sharing a
calabash of liquor with the deceased and left immediately after he had brought a
second calabash to the deceased.

(a) ) Mwakikao is accused of having robbed Msigwa on 10th October, 2007. Two witnesses testify that on the
evening of the said date, all of them at different times saw Mwakikao drinking beer excessively and that
contrary to his usual behaviour he was offering everyone a drink at Miomboni bar.

In this scenario, the fact in issue is whether Mwakikao robbed Msigwa on 10th October, 2007.
Evidence given by the two witnesses was to the effect that, on the evening of the said date, all of them at
different times saw Mwakikao drinking beer excessively and that contrary to his usual behaviour he was
offering everyone a drink at Miomboni bar.
Hereunder is a discussion of the admissibility of the above evidence under the Tanzanian Evidence
Act (Cap. 6 R.E. 2002)-hereinafter referred to as “The Evidence Act”. Section 9 of the Evidence Act
provides for facts which are the occasion, cause or effect of facts in issue. The section provides; “Facts
which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue or which
or constitute the state of things under which they happened, or which afforded an opportunity for their
occurrence or transactions, are relevant”.
Under this section, variety of facts which are connected to the fact in issue though not forming part
of the transaction but are closely connected to it may be considered relevant. The section can be
categorized to admit three classes of facts, viz.,
i) Facts which offer a suitable opportunity for the occurrence of facts in issue.
ii) Facts which are cause or effects of relevant facts or facts in issue.
iii) Facts which are immediate or otherwise.
The facts in this scenario show the probable effects of the aftermath of a robbery act. It was not
Mwakikao’s usual behaviour to drink beer excessively and offer some to everyone. This peculiar and
sudden behaviour draws a reasonable inference that the money Mwakikao was using might have been
obtained illegally. By the same token, these facts are admissible under the Evidence Act through section 9.
Such admissibility is limited in the sense that the facts must further be corroborated in order to prove the
case.

(b) Semkiwa is accused of obtaining money by false pretence. It is alleged that he draw a
promissory note in favour of Mary while knowing he would not be able to pay. Evidence is brought
to show that he was recently convicted of a similar offence after he had drawn a false cheque in
favour of Juma.

16
 In this scenario the fact in issue is whether Semkiwa obtained money by false pretence. Evidence
was brought by the prosecution to show that he was recently convicted of a similar offence after he had
drawn a false cheque in favour of Juma-whether these facts are admissible under the Evidence Act.
Section 16 of the Evidence Act provides; 16 (1) Facts showing the existence of any state of mind,
such as intention, knowledge, good faith, negligence, rashness, ill will or good will towards any particular
person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of
any such state of mind or body or bodily feeling is in issue or relevant.
(2) A fact relevant within the meaning of subsection (1) as showing the existence of a relevant state
of mind must show that the state of mind exists, not generally, but in reference to the particular matter in
question.
(3) Where, upon the trial of a person accused of an offence, the previous commission by the
accused of an offence is relevant within the meaning of subsection (1), the previous conviction of such
person shall also be a relevant fact.
Under section 16 (3), during trial, if an accused has or has been committing similar offences as the
one which is in question, then evidence to show the previous commission of similar offences is relevant.
Under this scenario, the accused was previously convicted of a similar offence after he had drawn a false
cheque in favour of Juma. This circumstance falls under the parameters of section 16 (3) and hence
admissible under the Evidence Act.
These facts may also be admissible under section 17 of the Evidence Act when there is a question
whether an act was accidental or intentional. The section provides thus; section 17. “When there is a
question whether an act was accidental or intentional, or done with a particular knowledge or intention, the
fact that such act formed part of a series of similar occurrences, in each of which the person doing the act
was concerned, is relevant”
The following cases further clarify this aspect; In the case of Mohamed Saeed Akrabi v. R29. The
accused had been charged with the use of criminal force with intent to outrage modesty in respect of two
boys. The evidence that on previous occasions the accused had committed similar acts in respect of other
boys was held to be admissible to show intention of the accused and rebut a defense of mistake or
accident. The court held that; “Evidence of similar offence not charged is admissible where there are
reasonable grounds for expecting that the accused will set up a defense of accident or mistake”
Moreover in the case of R. v. Hall30, it was held that, soon as it becomes clear that the defence of
the appellant was that the acts alleged against him had an innocent and not a guilty complexion or that he
relied on mistake or accident as a defense, the prosecution could call evidence of similar acts and such
evidence was not inadmissible because it tended to show that the appellant had committed other offences
of similar nature previously.

(c) X is charged with the murder of Y. The prosecution wants to bring evidence to show those two
days before Y’s death, X was seen at the local pombe shop sharing a calabash of liquor with the
deceased and left immediately after he had brought a second calabash to the deceased.

29
(1956) 23 EACA 153.
30
1952) i ER 66

17
 Under this scenario, the fact in issue is whether X murdered Y. Evidence adduced was to the
effect that, two days before Y’s death, X was seen at the local pombe shop sharing a calabash of liquor
with the deceased and left immediately after he had brought a second calabash to the accused-Whether
admissible under the Evidence Act.
Section 9 of the Evidence Act provides for facts which are the occasion, cause or effect of facts in
issue are relevant. The section provides thus; section 9 show facts which are the occasion, cause or effect,
immediate or otherwise, of relevant facts or facts in issue or which or constitute the state of things under
which they happened, or which afforded an opportunity for their occurrence or transactions, are relevant.
Evidence may be given under section 9 to show the state of affairs and is only admissible under
the limitation that it is admitted only to show occurrence of the case. It cannot be used to show the
character or state of affairs of the accused. A hypothetical example; Supposing that in a given case the
fact in issue is poisoning. X is alleged to have poisoned Y. The issue is whether x poisons Y. Facts are to
the effect that X was living with Yin the same room and the health of Y was perfect before he moved to X
may be admissible.
Comparatively; the scenarios manifest existence of a certain state of affairs which may be taken
into consideration as forming a nexus between them and the act alleged to have been committed. It has to
be borne in mind that the admissibility of the same will not automatically convict the accused; the facts will
further be needed to be corroborated by other evidence of which either conviction or no-conviction may
result in the final ruling

13. To what extend does the statement approximate the definition, scope, and
rationale for relevancy and admissibility of documentary evidence under the Law
of Evidence Act (Cap 6 R.E. 2002)

Documentary evidence is any evidence introduced at a trial in the form of documents. Although this term
is most widely understood to mean writings on paper (such as an invoice, a contract or a will), the term
actually include any media by which information can be preserved. Photographs, tape recordings, films,
and printed emails are all forms of documentary evidence. Thus in this question I am going to explain in the
definition, scope, and rationale for relevancy and admissibility of documentary evidence under the Law of
Evidence Act (Cap 6 R.E. 2002).
Documents that are often produced in courts are those of handwriting, printing, photostat, photograph,
and typewriting etc. Documentary evidence may range from a simple friendly letter to a complicated
conveyance or a survey map. In addition if a document is proved the original will often have to be tendered
and the document tendered will have to be authenticated. Even where such requirements are satisfied
admissibility of statements in the document will depend on other rules of evidence.
In the case of R.v. Daye31 one English Judge named Darling defined the term "document" to mean:
"...any written thing or printing capable of being evidence is properly described as a document and ...it is
immaterial on what material the writing may be inscribed. It might be inscribed on paper, as is the common
case now; but the common case once was that it was not on paper, but on parchment; and long before that
it was on stone, marble, or clay and it might be, and often was on metal."
In Tanzania the term "document" is defined in section 3(1) of the TEA to mean: " any writing,
handwriting, typewriting, printing, Photostat, photograph and every recording upon tangible thing, any form
of communication or representation by letters figures, marks or symbols or by more than one of these
31
[1908] 2 KB 333.
18
means, which may be used for the purpose of recording any matter provided that such recording is
reasonably permanent and readable by sight.
There is no doubt that the definition of the word document nowadays has much wider scope that what
is said in Dave's case above. There is no question that the current meaning of the term document covers a
disc, tape or film and conveys information by symbols, diagrams and pictures as well as by words and
numbers. That is w h y in Britain a wider definition has been adopted. The word document has been defined
to mean any writing or printing capable of being made evidence, no matter on what material it may be
inscribed. It is on the same basis that Walton J in the case of Grant v. Southern and County Properties 32
asserted that "a document is primarily something that instructs."
Documents are classified in two major categories: (i) public documents fs.83 of tea) and (li) private
documents as per section 84 TEA. This distinction is important owing t o the different rules governing their
admissibility33.
Documentary or real is either primary or secondary by its contents may be proved by primary or
secondary evidence (Sect. 63 TEA) as per D. Hussein v. R. [1975] LRT45. However the secondary
evidence is not admissible unless with certain circumstance provided under Tanzania Evidence Act of
1967. In the TEA such exceptions are found in section 67. The section provides for circumstances in which
secondary evidence is admissible.
In some cases documentary evidence may be admissible without the need of a witness or formal proof.
There is no specific provision in the TEA for this but such a possibility is found in other written laws. For
example in sections 203, 204 and 205 of the CPA which allow without formal proof the production of the
reports of a government analyst report, finger print expert report and handwriting expert report. These
cases fall under the rules relating to presumptions. Read the case of Kapoor v. R.34.
Apart from these sections 37-40 of the TEA provide for the admissibility of statements in documents
when made under certain circumstances. These include entries in books of accounts; entries in public
records; statements in maps, charts and plans; statements of fact contained in laws and official gazettes
and statements of law contained in books. Read the following cases on these aspects; Manji Suleman v.
R.G. Patel35; Chandria v J36 and R. v. Shaha Hirji Popat37
Under what circumstances can secondary evidence be admitted? Section 67 of the TEA mentions
seven cases in which secondary evidence of a document is admissible namely:- when the original is in the
power or possession (i) of the opposite party (see Lakman Ramji v. Jessa and Sons 38; or of a person who is
out of reach of or not subject to, the process of the court or a person legally bound to produce it, and when,
after the notice to produce is given such person does not produce it.
Also when the existence, condition or contents of the original are admitted in writing by the person
against whom it is proved, or by his representative in interest. See the case of Henry Mike v. R 39

32
[1975] CLI 185
33
Read the case o f manji v. r s pate! [1960] ea 125.

34
(1957) 18 EACA 283
35
(1957) 18 EACA 283[I960) EA 38
36
[1968] EA 246
37
(1947) 22 KLR (2) 38.
38
(965J E.A 125 (K))
39
[1975] LRT n. 67.

19
 Further more when the original is lost or destroyed. In Jasson Rwebangira v. R 40 the court said
before section 67(1) (c) can be operative the party seeking to produce secondary evidence is generally
expected to show that the original document existed and that a search has been made unsuccessfully and
must either prove its destruction positively or at least presumptively. A mere causal report or information
that the document had disappeared is insufficient.
Also when the original is of such a nature as not to be easily movable read Owner v. bee41 and
when the original is a public document within the meaning of section 83 of the TEA; and when the original
is a document of which a certified copy is permitted by this act or any other written law and finally when the
original consist of numerous accounts or other documents which cannot be conveniently examined by the
court as per the cases of J. B.M.D 'Sav.R42 and Edward v.R43.
To conclude I can say that to the big extent does the statement approximate the definition, scope,
and rationale for relevancy and admissibility of documentary evidence under the Law of Evidence Act (Cap
6 R.E. 2002)

14. “Traditionally, the subject of presumptions has been considered to represent enormous
difficulties of exposition and analysis. These difficulties are largely due to an unrealistic or
misguided belief that the whole subject of presumptions could and should, in principle be
reduced to a comprehensive and coherent system of rules of general application. At the root of
this belief lies a resistance to accepting presumptions for what they are: techniques, and no
more, for allocating the risk of losing the case” A.A.S. Zuckerman, The Principles of Criminal
Evidence (1989) p.114
Discuss.

In the law of evidence, a presumption of a particular fact can be made without the aid of proof in
some situations. The types of presumption include a rebuttable discretionary presumption, a rebuttable
mandatory presumption, and an irrebuttable or conclusive presumption. It is within background intended in
this paper to discuss on the above assertion.
By definition one can say that it is not simple to offer an accurate definition of the term
"presumption." The term has been derived from Latin word "praesumere." which means to assume.
According to Best W.M. in his book44 defines the term 'presumption' to mean: "an inference, affirmative or
dis-affirmative of the truth or falsehood of a doubtful fact or proposition, drawn by a process of probable
reasoning form something proved or taken for granted." He adds that the term "presumptive evidence" is
40
1975] LRTn. 26
41
1914] 1 KB 105
42
[1957] EA 627 (U)
43
1987] TLR 122,
44
Best W.M. (1911), in his book The Principles of the Law of Evidence

20
used to designate an inference, affirmative or disaffirmative of the existence of some fact, drawn by a
judicial tribunal, by a process of probable reasoning from some matter of fact either judicially noticed or
admitted or established by legal evidence to the satisfaction of the tribunal.
In other words a presumption is a legal devise by which the courts are entitled to pronounce on an
issue notwithstanding that there is no evidence or sufficient evidence on it.
Basing on the above assertion one can say that putting differently a presumption is a rule of law,
statutory or judicial, by which a finding of a basic fact gives rise to the existence of presumed fact until the
presumption is rebutted. Where a presumption operates a certain conclusion may or must be drawn by the
court in the absence of evidence in rebuttal. The effect of this is to assist a party bearing a burden of proof
in the particular case. The degree of assistance, however, varies from presumption to presumption.
As matter of Presumptions in the TEA, I can say that we have Presumption of Continuance of
Life, and Death, these are provided under sections 116 and 117 of the TEA. Under section 116 where the
issue is whether someone is alive or dead but was alive within thirty years and nothing whatsoever appears
to suggest the probability of his being dead the court is bound t o regard t he fact of his still being alive as
proved.
However under section 117 if a person has not been heard of for seven years there is a
presumption of law that he is dead, and the burden of proving that he is alive is shifted to the one so
affirming. This presumption does not extend to the date of death. In the case of Re Phene's Trusts 45
Giffard L.J. said that the law presumes a person who has not been heard of for seven years to be dead, but
in the absence of special circumstances it draws no presumption from the fact as to the particular period at
which he died.46
There also The Presumption of Legitimacy of a Child on Proof of Birth in Wedlock (Sect. 121
of TEA). On the proof or admission of the basic fact that a child was born or conceived during lawful
wedlock it is presumed, in the absence of sufficient evidence to the contrary, that the child is legitimate. The
presumption may be rebutted, for example, by direct evidence showing that the panics to the marriage had
no access to each other at any time when the child could have been begotten or that the husband was
impotent, or any other scenario showing the impossibility for the parties begetting a child. Alternatively, it
may be rebutted by presenting circumstantial evidence such as the wife's cohabitation with another man in
the relevant period of time before the birth of the child etc as per the cases of Banbury Peerage case47.
There is Presumptions as to Documents in Tanzania Evidence Act48
The presumptions as to documents provided for in the sections mentioned below are not of course
exhaustive and in appropriate cases other presumptions may be raised under general provisions of
sections 122 the terms of which are permissive.
Presumptions as to genuineness of certified copies 49 It is important to remember that the section
does not apply to original documents but only to certificates, certified copies or other documents that meet
the requirements set forth in the provision. The presumption set out in this section has two parts: first, there
is a presumption of the genuineness of the document itself and second, the officer who purportedly signed
the document or certified it held the official character that he claims in the document.
Presumptions as to documents produced as record of evidence 50. Under this provision the court is
required to presume that the document is genuine, that any statement as to the circumstances in which it
was taken, purporting to be made by the person signing it, are true and that such evidence was duly taken.

45
(1870) 5 Ch. App. 139
46
See also the cases of Chard V Chard [1955] 3 All. E. R. 721 and Butler v. Mutual life Insurance Co.
225 N. Y. 197, 203 N E 758.
47
(1811) J Sim & St 153; see also Legge V Edmonds (1855) 25 L J Ck 125; Cope v. Cope (1833) 1 Mood
& R 269 and Masuka v. Sigonjwe [1971] HCD n. 92.
48
Cap 6 R.E 2002
49
(s.88 TEA)
50
(Sect. 89 TEA)

21
However it has to be born in mind that this presumption does not deal with the questions of admissibility
and relevancy. See the opinion of the Court of Appeal of East Africa on this point in Antoine Ernesia v. R.51
Other documents52, this section declares government gazettes or newspapers cr journals or copies
of private acts of parliament printed by the Government Printer to be prima facie proof of their genuineness.
The document must be produced from proper custody i.e. it must come from custody which is natural and
reasonable under the circumstances.
Presumptions as to accuracy of maps or plans made by authority of the government, 53 this
provision has to be read together with section 38 of the TEA. The general ground of the presumption is that
the maps or plan contain the results of enquiries made by competent officers with publicity concerning
matters in which the public are interested. The 'accuracy' aspect is focused on the accuracy as to drawing
and correctness of the, say, measurements but does not refer to the laying down of boundaries between
estates according to the rights of the parties, names of proprietors etc. The cases of Mohamed Rashidi V
R54 and Magoti Matofali V R 5 5 amply elaborate this point.

Presumption as to the genuineness of collections of laws and reports of decision (Section 92 TEA).
This provision has to be read together with section 40 of the TEA. It applies to both statutes and judicial
decisions. The section dispenses with the need to prove the genuineness of officially printed books of any
country containing laws and reports of judicial decisions.
Presumption as to proper execution and authentication of private documents executed outside the
United Republic (Section 93 of TEA), there is Presumption as to due execution and authentication of a
power of attorney (Section 94 of TEA), Presumption as to due execution of documents not produced after
notice to produce (Sect 98 of TEA), Presumption on the genuineness of documents that are 20 years old
(sect, 99 of the TEA)
to sum up the foregoing discussion I can say that it is true that traditionally, the subject of
presumptions has been considered to represent enormous difficulties of exposition and analysis. These
difficulties are largely due to an unrealistic or misguided belief that the whole subject of presumptions could
and should, in principle be reduced to a comprehensive and coherent system of rules of general
application. At the root of this belief lies a resistance to accepting presumptions for what they are:
techniques, and no more, for allocating the risk of losing the case”

15. ‘’The Tanzania Evidence Act. Cap. 6 R.E 2002 is not exhaustive’’. Critically discuss
this statement.
The term evidence defined as means by which the prosecution tries to prove its case and defendant tries to
defend or cast doubt upon the prosecution’s evidence in term of criminal trial as well as in civil case
claimant attempts to prove case and the defendant attempt to counter the claimant’s case.
In other word the term evidence defined as “donated the means by which an all egad matter the
means by truth of which is submitted to investigation is proved or disproved and without prejudice to the
processing generally, include statement and admission by accused person.” 56 But modern time it could be
defined as “all statement which the court permits or requires to be made before it by written in relation to
matter of fact under inquiry, such statements are called oral evidence’’

51
1962] E.A. 505 (CA) andMagoti Matofali V R (1953) 20EACA 232.
Presumptions as to gazettes, newspapers, private Acts of the National Assembly and
52
(Section 90 TEA)
53
(Section 91 TEA).
54
(1951) 18 EACA 298
55
(1953) 20 EACA 732
56
Ibid.

22
 In Tanzania the law of evidence is governing by Tanzania Evidence Act 57, although there other law
such as Penal Code58, etc. but in this question we are going to discuss the Tanzania Evidence Act to see
whether it is or not exhaustive.
Generally speaking the applications of the Tanzania Evidence Act 59 affricates presented to any
count or office nor subject section 76 to proceeding before an arbitrator.
According to my view the Tanzania Evidence Act in most case cover to the extent that one can not
infringed his justice. For example this Act provides the provisions such as relevance of facts, Admission
statement by person is to cannot be called witness, Extent to which statement is to be formed, relevancy
of opinion of third person, Relevancy of character, facts requiring no proof, Documentary, evidence,
Bonding of proof, etc
However there is weakness in certain instances especially in documentary evidence. For example
in the Act60 define the term document as any writing handwriting printing Photostats, photography and
every recording upon any tangible thing, any form of communication or representation by letters, figures,
marks or symbols by more than me of these means, which may be used for the purposed of recording any
matter provided that such recording is reasonably permanent and readable sight.
While the term documentary evidence defined as “means all documents produced as evidence
before the court’’61. It should be note that the above interpretation did not include certifying, digital
signatures, digital signatures, Digital signatures certificates, Electron form, electronic records, information,
secure electronic, record, secure digital signature, and subscriber, which are very important and should be
included in the Act.
Why these terms should be including in our statute? It is due to the fact that the society always
tends to change every day. And these changes must go together with the changes of law. For example
computer today hard had been absorbed in every aspect of human life. These sophisticated gadoids are no
longer simply refined to computing arithmetical or logical problem. They go much further than thus, and if
closely noticed computer efficient even the smallest task of our life
It should be noted that with the advance of internets, computer here open innumerable avenueable
avenue of job opportunity. Ecommerce form than Transaction not only between two organizations and
undivided. Electronic payment it seems, have become the fashion of the day. But where on one hard it has
brought about a revolution change in the living standard, on the very other hand it has also introduced a
number of new of crimes, which till wherever been heard of. Computers have given the participants in
criminal scheme an enormous ability unknown hither to. They can communication secrecy an encrypted
messages use virtually private network leaving no traces telephone communication made between the
operatives.
Hacking once used as a term for programming now commonly used to describe cyber crimes. And
this varies several issue regarding the security and privacy of information section the computer. It should
note that a meaningful computer regulation law should it a single comprehensive framework, which would
deal with civil and criminal law. The legislation should address computer and computer related aspects in
categories of crimes by means of a computer. For this purpose it becomes importance to bring about a few
necessary changes in the existing system of legal statements

57
Cap 6 R.E 2002
58
Cap 16 R.E 2002
59
Cap 6 R.E 2002
60
Ibid.
61
Sec. 3 cap 6 R.E. 2002

23
 To give an example from India all document including electronic records produce at for inspection
of court, such documents are called documentary evidence as per Information Technology Act of Indian
where the scope of the term Evidence also includes electronic rerecord along with other oral and
documentary evidence. To my view, Evidence in the form of electronic should be admitted in the court of
law on the same basis as other documentary evidence
In the light of section 19 The Act62 provides provision for the term admission. The definition
provided seems to inadequate due to the fact that it does not contain electronic form. The light definition
could be read as follow “A” admission is a statement oral or documentary or contained in electronic form
which suggest any inference as to any fact in issue or relevancy fact and which is made by any persons.
And under circumstances here in after mentioned”
Furthermore the electronic record any evidence in electronic form, which may suggest any
inference that any statement made by any person relating to facts in issue or relevant facts is untrue could
be admissible.
Part IV of the TEA (2002) provides the provision for statement by person who cannot be called as
virtues especially in criminal proceeding does not show information retrieved from computer system
network and serves or the records. Obtained through seruillance of means of preservation or of information
including facsimile machines, electronic transmission and commutation, facilities, the audio or video
recording of acts or behavior or conversation of person charged.
To wind up the above discussion one should agree with me that despite of the fact that Tanzania
Evidence Act be suitable to the big extent but still its need to be modifies due to the changes appeared
before the related matter.

16. write short notes on the following (a) Voire dire (b) Direct evidence (c) Res gestae
(d) accomplice evidence
a) Voire dire
Voir dire is a legal phrase that refers to a variety of procedures connected with jury trials. It
originally referred to an oath taken by jurors to tell the truth (Latin: verum dicere), i.e., to say what is true,
what is objectively accurate or subjectively honest, or both

The word voir (or voire), in this combination, comes from Old French and derives from Latin
verum, "that which is true". It is not related to the modern French word voir, which derives from Latin vid ēre
("to see"), though the expression is now often interpreted by false etymology to mean "to see [them] say".

It is conducted by the court where it is of the opinion that a child of tender years is incapable
understanding the nature and obligation of oath. The term Voir Dire Examination means the examination
the examination conducted by court in order to test a capacity of a child of tender years to understand
questions put to him or her and to give rational answers.

Also examination is conducted to test the capacity of a child of tender years to understand the difference
between truth and false hood. Court intervention in trial generally, it a duty of parties or their advocates to
conduct their own cases in their own way and to the best of their ability. However, the court has the duty to

62
TEA cap 6 R.E 2OO2

24
intervene in order to discover or obtain proper proof of relevant facts. See section 176 of the Law of
Evidence Act, 1967 as [R.E 2002].

b) Direct evidence

Direct evidence supports the truth of an assertion (in criminal law, an assertion of guilt or of
innocence) directly, i.e., without an intervening inference63.

Direct evidence requires no mental process on the part of the court in order to draw the conclusion
sought by the proponent of the evidence, other than the acceptance of the evidence itself. Circumstantial
evidence on the other hand requires the court to not only accept the evidence, but to also draw inferences/
conclusions from it.

In other words, it is evidence based on inference and not on personal knowledge of information.
E.g. X is charged with robbing a bank, and is seen by Y running from the bank clutching a wad of bank
notes. Y’s evidence that he saw X running from the bank clutching a wad of notes is direct evidence, while
the circumstantial evidence is that X robbed the bank. The court must thereby draw inferences from the
facts perceived by Y I.e. X’s running, clutching notes.

(c) Res gestae

This is a doctrine deals with the facts tough not issue in issue taking place in the same place or
different place on the same transaction before or after the fact in issue are relevancy and admissible. To be
admissible under this section fact must be contemporaneous and so much connected to the fact in issue so
that they form part of the same truncation.

If res gestae is a statement, it must not be given in contemplation of mitigation and it must be
given as soon as possible in respect to factum probandum otherwise it cannot be admissible64.

In R v Premji Kurji65 the deceased had killed with a stabbing weapon (dagger) It was admitted
that, just prior to death of the death of the deceased the accused had assaulted the deceased’s brother
with a dagger and had uttered, that, “I have finished you now I am going to show your bother’ The
issue decided here was whether the words spoken by the accused that I have finish you and now I am
going to show your brother were connected to the fact in issue (murder) . Among other things the court of
appeal for East Africa held that it is not possible to load evidence of accused having committed the
particular offence with which he is charged and if the wounding had taken part in a different part
and weren’t connected with the murder the objection would of course be well founded. But here the
two occurrence are so connected inter-closely that the wounding deceased brother should be
regarded as part of the resgestae on the trial of the applicant for the murder of the deceased”

In another case Ismail v R66 a child of 4 years was raped and immediately after the rape ran home
and informed her father about the rape, and the father letter together with her went to identify the culprit.
63
Jonathan Law, Elizabeth A. Martin (2009).
64
Section 8 of TEA
65
(1940)VII 58 EACA
66
(7) ZLR 36

25
The child said “this is the Bwana who put cheche into me” the issue was whether this statement “this is
the Bwana who put cheche into me” could be taken as relevant fact to the fact in issue (rape). It was held
that, there was no connection between the act of molestation and the statement “that is the bwana
because the two acts took part in different places. The court had this to say “when it comes to a
matter of res-gestae minutes are of utmost important, that if sufficient time has elapsed between
the alleged transaction and the statement to allow for invention of the statement then the statement
is not reliable”

In the case of R v BEDINGFIELD67 On an indictment for murder it appeared that deceased, with
her throat out came out of a room suddenly in which she left the defendant who also had his throat cut and
was speechless and she said “see what Bedingfield has done to me” a few minutes later she died; her
statements was rejected by COCKBURN C.J s not part of the res gestae, on the ground that it was not
uttered at the time the act was being done but after the act was completed.

(d) Accomplice evidence

At law, an accomplice is a person who actively participates in the commission of a crime, even
though they take no part in the actual criminal offense. For example, in a bank robbery, the person who
points the gun at the teller and asks for the money is guilty of armed robbery.
However, anyone else directly involved in the commission of the crime, such as the lookout or the
getaway car driver, is an accomplice, even though in the absence of an underlying offense keeping a
lookout or driving a car would not be an offense.
An accomplice is one concerned with another or others in the commission of a crime or one who
knowingly or voluntarily cooperates with and helps others in the commission of crime. It was held in R.K
Dalmia v. Delhi Administration68 that “an accomplice is a person who participates in the commission of
the actual crime charged against an accused. He is to be a particeps criminis.
An accomplice differs from an accessory in that an accomplice is present at the actual crime, and
could be prosecuted even if the main criminal (the principal) is not charged or convicted. An accessory is
generally not present at the actual crime, and may be subject to lesser penalties than an accomplice or
principal.
The Court in Jaganath v. Emperor69 explained that an accomplice is a guilty associate or partner
in crime, or who in some way or the other is connected with the offence in question or who makes
admissions of facts showing that he had a conscious hand in the offence.
As a matter of practice require accomplice to be corroboration, however as matter of law as it
provided under section 142 of Tanzania Evidence Act provides that “An accomplice shall be a competent
witness against an accused person; and conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice”.

17. With reference to case laws explain how to deals with a confession that is
retracted or repudiated

67
1879 14 COX 341
68
AIR 1962 SC 1821.
69
AIR 1942 Oudh 221.

26
Repudiation occurs when one party, by words or conduct, evinces an intention not to perform part or all of
the contract. When such an event occurs, the performing party to the contract is excused from having to
fulfill his or her obligations. However, the repudiation can be retracted by the promising party so long as
there has been no material change in the position of the performing party in the interim. A retraction of the
repudiation restores the performer's obligation to perform on the contract.

if the accused retracts or repudiates his confession the court is required to ascertain its reliability and, or
seek corroboration.; the court of Appeal of Tanzania in Shihobe Seni & Another vs. Republic70 said that
where confessions are repudiated then there is a need for ascertain their reliability and or seek
corroboration. But how ascertaining reliability of repudiated or retracted confession can be done? It
may be done by holding trial within trial. And how can evidence corroborating repudiated or retracted
confession can be sought?

The Court may seek the evidence corroborating repudiated or retracting confession by ordering the
prosecution to call witness corroborating repudiated or retracted confession Michael Luhiye V. R.71
Quoting the Case of RV Gae s/o Maimba and Another72 where there is no rule of law or practice making
corroboration of a retracted confession essential. Corroboration of a retracted confession is desirable but if
the court is full satisfied that the confession cannot be true, there is no reason in law why it should not act
upon it.

In the case of D.P.P. v. Noah Kipenya73 Retracted confessions arises when accused person
admits that he made the statement recorded but declares to the court that he was tortured to or induced
on what is sought to be produced in not what he said. If retracted, confession cannot support conviction
unless corroborated.

Weather a retracted confession cannot support conviction unless corroborated.

An accused person may repudiate or retract a confession that he had earlier made. In Tuwamoi v
Uganda74 the court defined the terms repudiate and retract. A statement is repudiated where the maker
avers that he never made it, while a statement is retracted where the maker admits that he made the
statement, but now seeks to take it back on the ground that he was forced/induced to make it, and it was
therefore not voluntary. In Tuwamoi v. Uganda, the court stated that it is dangerous to rely on a repudiated
or retracted confession, unless the court after considering the facts of the case arrives at a conclusion that
the confession is true.

In another decision three years later the Eastern Africa Court of Appeal said in RV Kaperere s/o
Mwaya A Court may convict on a retracted confession even without corroboration. Though such
75

confession must be received with great caution and reserve, the celebrated decision is the case of
Tuwamoi v Uganda76 the Court of Appeal for Eastern Africa had the following to say: We would summarize

70
[1992] TLR 330
71
Criminal Appeal No. 77 of 1993 (CA Unreported) Kisanga, J. A. Omar, J. A. and Mnzavas, J. A.
72
(1945) 12 EACA 82:
73
(1980) TLR 212.
74
(1967) EA 67,
75
(1948) 15 EACA 56
76
[1967] EA 84

27
the position thus: a trial Court should accept any confession which has been retracted or repudiated with
caution and must before founding a conviction on such a confession be fully satisfied in all the
circumstances of the case that the confession is true. The same standard of proof is required in all cases
and usually a court will only act on the confession if corroborated in some material particulars by
independent evidence accepted by the court. But corroboration is not necessary in law and the
court may act on a confession alone if it is fully satisfied after considering all materials points and
surrounding circumstances that the confession cannot but true.

18. What is hearsay rule? What is its exception?

In this question I am going to discuss the concept of hearsay rule and finally its exception. General the
rule against hearsay is deceptively simple and full of exceptions. Hearsay is an out of court statement,
made in court, to prove the truth of the matter asserted. In other words, hearsay is evidence of a statement
that was made other than by a witness while testifying at the hearing in question and that is offered to prove
the truth of the matter stated.
By definition Hearsay evidence falls under the category or oral/parole evidence. This is defined under
the American federal Rule of Evidence 801(c) as a statement, other than one made by the declarant,
offered in evidence to prove the truth of the matter asserted.
Murphy does not directly define hearsay, but he describes the same as follows “Evidence from any
witness which consists of what another person stated (whether verbally, in writing, or by any other method
of assertion such as gesture) on any prior occasion, is inadmissible, if its only relevant purpose is to prove
that any fact so stated by that person on that prior occasion is true. Such a statement may, however be
admitted for any relevant purpose other than proving the truth of the facts stated in it.
The general rule against hearsay is that a statement made by a person, not called as a witness, who is
offered in evidence to prove the truth of the facts contained in the statement is hearsay and is not
admissible. If the statement is however offered in evidence to prove that it was in fact made, and not to
prove the facts contained therein, it is admissible.
In the case of Subramaniam v The DPP 77 where the appellant was charged and convicted of being in
possession of fire arms without a lawful excuse. He was convicted and he appealed. The appeal court held
that: “evidence made of a statement to a witness by a person who is not himself called as a witness may or
may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth
of what is contained in the statement. It not hearsay and is admissible when it is proposed to establish by
the evidence, not the truth of the statement.
Illustrations of the general rule relating to hearsay: The question is whether A defamed Doctor B by
calling him incompetent. Witness C may be called to testify that he heard A calling B incompetent. The
purpose of the witness is not to establish the truth of the statement, i.e. that Doctor B is incompetent, but to
prove that it was made. Only A may be called as a witness to prove the truth of the facts contained in the
statement that he made.
If X says that he saw Y beat up Z with a stick on his head that is direct evidence: - X perceived it. If
however, X says that he was told by Z that Y beat him on the head with a stick that could be hearsay, if
tendered to the court to prove that Y did beat up Z. If however offered merely to prove that the statement
was made, that is not hearsay.

77
(1956) WLR 965

28
 Note that these illustrations relate to the general rule, and there are exceptions to the same Section 61
and 62 of the TEA contain provisions on oral evidence. S.62 specifically states that oral evidence must in
all cases be direct, that is to say: (a) If it refers to a fact which could be seen, it must be the evidence of a
witness who says he saw it, (b) If it refers to a fact which could be heard, it must be the evidence of a
witness who says he heard it, (c) If it refers to a fact which could be perceived by any other sense, or in any
other manner, it must be the evidence of a witness who says he so perceived it, (d) If it refers to an opinion,
or to the grounds on which that opinion is held, it must be the evidence of the person who holds that
opinion or as the case may be, who holds it on those grounds.
If such oral evidence is indirect, it becomes hearsay, and it is generally inadmissible. Hearsay
evidence is inadmissible for a number of reasons:- a) the evidence is not given on oath (the evidence is
given by another person on behalf of the person who perceived it), b) The evidence cannot be tested by
cross examination, c) The evidence presupposes a better testimony and d) the evidence is weak as it is
subject to distortion.
In Njunga v R 78 upon appeal, it was held that: “The knowledge which the court below had of this
felonious enterprise was derived from what a sergeant of police had told the court, that an un named
uncalled, unsworn individual had told him. Without this hearsay evidence, the court below very clearly
would have found it difficult, if not impossible, to have determined whether the appellant has the intent to
commit a felony, and if so, what felony.” The Court therefore concluded that the evidence had been wrongly
admitted and quashed the conviction.
Purpose of the witness’s statement: not to prove that the statement was made, but to prove that the
statement was true.
Exceptions to the hearsay rule
1. Statements by persons who cannot be called as witnesses
In order for statements made persons who cannot be called as witnesses to be admissible, the person
must be dead, unknown, cannot be found, cannot be summoned to the court due to diplomatic immunity or
other privilege, can be summoned but refuses to voluntarily appear in court as a witness, has become
incapable of giving evidence, cannot appear in court without unreasonable delay or expense. In Mohamed
Warsama v. R79, the deceased had made a series of dying declaration, and had in them stated the cause
of death of another deceased. The court held that these were not admissible as related to the other
deceased, as a dying declaration has to relate to the cause or circumstances leading to the death of the
deceased and not any other person.
In R v Eligu s/o Odel and Epongu s/o Ewunyu 80, The deceased had stated in a dying
declaration that the two accused had attached him. The court of appeal held that: it would not be
reasonable to assume that a stranger to the earlier events had identified himself with a later attack on the
deceased.
2. Admissibility of Certain Trade or Business
in section 34A applies to criminal cases only, where the maker of certain statements cannot be called as a
witness. The statement to be admitted herein must be written, The statements must have been made either
as a Memorandum or record of the act/transaction/ occurrence/event, A record relating to any trade or
business, and made in the regular course of business, where is it the practice to record such a
transaction/occurrence/event when it takes place or within a reasonable time after.
78
(1965) EA 773

79
(1956) 23 EACA 576
80
(1943) 10 EACA 90

29
3. Proof of written statements in criminal proceedings
S 34B applies to admissibility of affidavits and other similar declarations in criminal proceedings. Affidavits
are admissible under that section if they fulfill the following conditions: The maker of the statements is not
called as a witness, is dead, unfit to attend court by reason of mental or physical condition, is overseas, it is
not reasonably practicable to call him as a witness, he cannot be found, he is not identifiable or by some
operation of the law he cannot attend etc. There is however a proviso that such a statement cannot
corroborate evidence given by the maker of the statement.
4. Proof of written statements in civil proceedings
in section 34C admits written evidence instead of the attendance of the maker of the statement, especially
where the maker is dead, cannot be found, is unfit to attend court by reason of mental or physical condition,
is overseas, it is not reasonably practicable to secure his attendance, or all efforts to find him have failed. It
must be proved that such a statement would be admissible had the maker been available to give evidence
in court.
5. Evidence given in previous judicial proceedings S. 35
Evidence given by a witness in previous judicial proceeding is admissible in subsequent proceedings, or at
a later stage of the same proceeding (e.g. appeal) where the witness is dead, cannot be found, is incapable
of giving evidence, is kept out of the way by the adverse party, or his presence cannot be obtained without
unreasonable delay/expense. In Ndola v. R81, it was held that the phrase cannot be found referred to the
time when the witness was sought to attend court and not to the state of affairs at an earlier period
The foregoing explanation was all about the concept of hearsay rule and its exception thereto.

19. When is the prima facie case made out? With illustrations from case law, show the
course taken by the court when a submission of no case to answer is entered:
i) In a criminal case,
ii) In a civil case
The phrase "prima facie case" has mostly been used, in some case law, at the close of the
prosecution case. Normally, in criminal procedure, at the close of the prosecution case the court is required
to consider whether or not a case has been made out against the accused sufficiently to require him to
make his defence (Sections 230 and 293 of the CPA). If the court is satisfied that a case has been made
out against the accused sufficiently to require him to make his defence, there is said to be a prima facie
case. Thus basign on the above introduction I am going in this question to give the concept of pr prima
facie case made out and finally to illustrate from case law, show the course taken by the court when a
submission of no case to answer is entered in a criminal case and n a civil case.

The term prima facie originates from Latin meaning "of first appearance" or "at first sight" Sarkar
says: "Prima facie evidence is evidence which, if accepted, appears to be sufficient to establish a fact
unless rebutted by acceptable evidence to the contrary. It is not conclusive."

And in the case of Romania! v.R82 the court stated: "It may not be easy to define what is meant by
"prima facie case" but at least it must mean one on which a reasonable tribunal, properly directing its mind
to the law and the evidence could convict if no explanation is offered by the defence."

81
(1926) (10) KLR 11
82
[1957] EA 332 (CA)

30
 The establishment of a prima facie case at the close of the prosecution case, therefore, does not
necessarily mean mat the prosecution has proved the case beyond reasonable doubt. For this reason a
case proved "beyond reasonable doubt" should not be confused with prima facie case.

The question whether there is a prima facie case, therefore, necessarily involves some evaluation
of the evidence and consideration of the principles of law relevant to the case. Where it appears, at the
close of the prosecution case that a case has not been made out the court is required to dismiss the charge
and acquit the accused. In such a situation the accused is said to have no case to answer 83. If the court
comes to the conclusion that the accused can be convicted, if no explanation is given by the accused, then
there is a prima facie case. Other cases elaborating the concept 'prima facie case' include the following: R
v. Kakengele Msagikwa84, Wibirc v. R.85; Murimi v.R., 86and Bhatt v. R. 87

The term “No case for the defendant to answer “ (sometimes shortened to no case to answer)
is a term in British criminal law, whereby a defendant seeks acquittal without having to present a defense.
At the close of the prosecution's case during a criminal trial, the defendant may submit to the judge or
magistrate that there is no case for the defendant to answer (similar to a motion for a directed verdict in a
United States court). If the judge agrees, then the matter is dismissed and the defendant is acquitted
without having to present any evidence in their defence. If the judge does not accept the submission, the
case continues and the defence must present their case.

Because a judge's refusal to uphold such a submission may potentially bias a jury's decision, a
submission of No Case to Answer is usually heard in the absence of the judges.

in criminal case If, after hearing both parties, the judge is satisfied that the evidence led by the
prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of
which the submission has been made or of such other offence as is mentioned, in relation to that offence,
in paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which the
submission has been made and the trial shall proceed only in respect of any other offence charged in the
indictment.

in civil case In U.NP andey v Hotel Marco Polo Pte Ltd, it would be desirable practice in our court
to allow submission of no case to answer at the end of the plaintiffs case, without putting the defendant to
his election, whether to call evidence or not, if his submissions fails. It is trite to say that we have young
legal profession and a fused one.

As stated above, the defendant may elect to submit no case to answer in two situations; first,
insufficiency of legal ground on the part of the plaintiff. Second, when there is insufficiency of factual
evidence.

83
(Sections 230 and 293 of the CPA)
84
(1968) H.C.D no. 43
85
[I960] EA 184
86
[1967/ EA 542
87
[1967] EA 332.

31
 This rule shows in following cases: In A bang Haji Jayabin Datu Benteral v CheeKian Sian 88 , it
stated that when Magistrates adjudicating in civil cases they should normally follow the practice approved in
English civil cases of not ruling that there is no case to answer until the defence have made their election
whether they will call evidence. If the defense elects to give evidence, that evidence should first be heard.

It also similar in Young v Rank 89 it was held that the judge had discretion whether he would
require counsel to elect either to stand on his submission or to call his evidence. Observations on the
considerations which should be taken into account in the exercise of the discretion of the judge whether, on
a submission of no case to answer, a ruling should be given at the close of the plaintiff's case or after
taking the verdict of the jury.

To sum up the above explanation one can say that once a defendant in civil proceedings makes a
submission of no case to answer and elects not to call evidence, then all the evidence led by the plaintiff
must be assumed to be correct. The practice of submission of no case to answer will bring about a saving
of cost and time of the parties and the court in which if the plaintiff case not established, it no need for the
defendant to prolong the trial to reply. Therefore it was desirable in civil procedure so that the parties obtain
immediate decision if the plaintiff case was fall above situation stated.

20. “Primary evidence is evidence which the law requires to be given first; secondary
evidence is evidence which may be given in the absence of that better evidence,
when a proper explanation of its absence has been given”.[LORD ESHER in Lucas
v. Williams as cited in SARKAR’S LAW OF EVIDENCE (1993), 14th ed, p.943
Discuss
The documentary evidence has been defined in various text books, and different statutes, from
different countries. For example the Indian Act define the term document is 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 matter90.
Where a document is executed in every parts, each part is primary evidence of the document, where the
document is executed each counterpart being executed by one or more of the parties only each counterpart
is primary evidence as against parties executing it, and where the 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 though where they are all copies of
common original, they are not primary evidence of the contents of the original91.
To say in short the underlined principle which seeks for the production of original document is that
he best evidence must be given by which the nature of the case permits. It should he noted that the
rationale behind the requirement of primary evidence is on the necessity to ascertain the massage as
regards contents, construction or misconception.
In other side, there is secondary evidence as it provided under section 65 of the TEA includes
certified) copies issue officially such as copies of judgment or decree. It follows that copies which are, not

88
(1958) SCR 12
89

90
Section 3 of Indian Act.
91
Section 64(1) ibid.

32
certified must be proved by the evidence of person who copies at from the original or original copy. In the
court, comparison will be done by having the present copy checked against the other.
To support the above point in the case of Hindson v Ashby92 the court was held that photographs
can be admitted as evidence to show whether a certain areas is part of a river or not. But in order to prove
such the evidence of the photographer must be led to prove the correctness of the photography itself and
that as oral account of photograph or another account of mechanical process is not a secondary evidence.
To say in short primary evidence of document is the document itself. The general rule is that
primary evidence of the document must be produced. Which every party wants to produce a document
must produce, the original document containing the subject matter in issue as for Kanji Printing Works v
Tanga District Council.93
In the case of Kaman Ranji v Shivji94 the court argued that the onus of showing that the document
has been lost or destroyed or that it cannot be produced in reasonable time is on the party who wishes to
give secondary evidence on its contents. It may not be necessary to prove the exact make and time of the
loss, but it is sufficient to show that the loss was not due to the fault of the party or his negligence. If the trial
court admits secondary evidence without proof of the loss or execution of the original the appellate court
will not interfere with the admissibility of the document.
In the same truck the court in the case of G. Pathal v Nathoo95 was held that where a case has
been conducted before the trial judge by both parties upon the footing that a document has been properly
admitted in Evidence, it is not open to a party on appeal to argue that owing to some defects I the proof the
document ought not to have been admitted.
Reading between the line, under clause (d) of section 67, secondary evidence of the contents of a
document which are physically impossible or inconvenient to produce in the court are admissible for
example, inscription or walls or tombs, stones, surveyors marks on boundaries trees and any other
example of the like nature.
To conclude the above explanation it is true that the statement that a document is instrument on
which relevant fact are recorded men of letters, figures or marks within the rationale for the BEST
EVIDENCE RULE, a document is any physical embodiment of information or ideas which may be
evidentially used.

21. Proof of the contents of a document may be given by either primary or secondary evidence.
Discuss
The term document is defines as something’s that records or transmits information, typically in writing
on the paper. For the purpose of providing evidence to the court, documents include books, maps, plans,
drawings, photographs, graphs, discs, tapes, soundtracks, and films. Some legal documents those are only
valid if they meet certain requirements.

In Tanzania Evidence Act96 define document as- “means any writing, hard writing, typing writing,
printing, Photostat, photography and every recording upon any tangible thing, any form of communication
92
(1996) 2 ch p. 21.
93
(1970) HCD 253.
94
(1965) EA. 87,
95
(1962) ED 372.
96
Cap 6. R.E. 2002

33
or representation by letter, figures, marks or symbols or by more than one of these means shish may be
used for the purpose foreordain any matter provided that such recording regionally permanent and legible
sight.97

But the definition the term documentary evidence means ‘’all documents produced as evidence
before the court’’98. It should be noted that documentary evidence is evidence written rather than oral form.
The admissibility of a document depends upon proof of the authenticity of the document and also the
purpose for which it is being offered in evidence. If it will be necessary to consider the application of the rule
against hearsay and its for the document.

As a general rule the evidence should proved by primary evidence unless secondary evidence
become admissible for any of the reason mentioned in section 67 of the Tanzania Evidence Act99 in which
case secondary Evidence of the content of a document may be prove for the inspection of the court.

To say in short the rule laid down under section 64 and 65 of the Tanzania Evince Act general
means that the content of a document must be proved by primary evidence under secondary Evidence
becomes admissible for any of the Tanzania evidence Act in which case secondary evidence of content of
a document may be proved for the inspection of the court.

According to section 63 of the Act provides that ‘’the contents of documents may be proved either
by primary or by secondary evidence’’ Section 64, (1) of TEA defined primary evidence as the document it
self for the inspection of the court. The underline principle which seeker for the protection of the original
document id that the best evidence must be given by which the nature of the case permits.eg a court is
signed between A and B. the contract is written two times over and each part signed by each of the parties
and such party retain in a copy the contract is said to be Duplicate original and where it is excuted three
parts are called Triplicate original.

Where a document is executive in several parts or counter parts each part is primary evidence the
document. An instrument is said to be executed in several parts when it is written out and signed or sealed
by all the parties to the instrument each part retaining one written to writer and signed or sealed.100

Under section 64 (4) TEA provides that where a number of document are all made by a uniform
process such as printing, lithographic photographic etc they are prime as document of each other. But a
reproductive of any of the document made by a uniform process all just be secondary evidence of the
original. In case of carbon copy. These will normally be the primary evidence of the content of the
document because they are made by one uniform process.

In the case of DPP vs Akber Rashid Nathan101 the court was held that the high court had been
wrong to refuse to accept as primary evidence a loose volume produce by the international Air Transport
Association entitled Agency list produced by a process capable of making many other document uniforms

97
Ibid.
98
Section 3 ibid
99
Cap 6 R.E.2002
100
Sec. 64(2) of the TEA.
101
(1966) E.A 13.

34
with the leaves of the where produced. It was that the national behind the requirement of primary evidence
is on the necessity to ascertain the message as regards contents construction or misconception.

In a documentary evidence one can say that is a document which may under certain
circumstances be given in place of primary evidence include certificate copies, under certain circumstance,
copies made from the by mechanical processes which in themselves ensure accuracy of the copies and
copies compared with the original.

Under section 65 describes the circumstances under which secondary evidence may be permitted
as evidence. It is therefore possible for a piece of evidence fought to be produced is a patient case to
quality the right secondary Evidence under section 65 but the same may became inadmissible under
section 67.

In Hirdson v Ashby102 it was held that photographs can be admitted as evidence to show whether
a certain area is part of a river or not But in order to prove such the evidence of the photographer must be
led to prove the correctness of the photograph it self and that an oral account of a photograph or another
account of mechanical process is not a secondary evidence.

It should be noted that secondary must only be produced when the contents of the original
document are not available as per section 62 therefore the reasons behind for admissibility of secondary
document as follows.

(1) When the original has been destroyed or lost or when it cannot be produced in reasonable time
secondary evidence is admissible. Loss of the document question has to be proved after the proof of
execution of the document where as the execution of the document can be proved by the evidence of
attesting witness of the document.

(2) When the original appears to be in the possession or power of the person whom the document
is fought to be adduced against their bounder is on the person who is seeking to produce the document to
shows that he cannot tender the original. The court here will normally issue summons to the party in
whose possession the document is when party is present before the court the court can demand the
production of the document there and them.

(3) where the existence conditions or content of a document are admitted by a party for the
purpose of a particular legislation the admission will be conclusion and no question of following the
document by primary or secondary evidence will arise . However if the admission is not put in writing it can
only be proved in cause stated under section 67 (9) (c) and (d)

To wind up the above discussion I can say that proof of the contents of a document may be given
by either primary or secondary evidence. However as a general rule the document evidence should be
proof by primary and secondary evidence will be admitted only by special circumstances here above
mentioned

102
(1896) 2 Ch p. 21.

35
22. What is the current position of the law with regards to evidence relating to electronic records?
In your opinion, are the steps taken so far adequately address the challenges raised by the
impact of ICT on rules of evidence in Tanzania?
Once handled a case in which every aspect of the business was done electronically, including the
invoicing. The issue we had to consider was the admissibility of the documents, all produced electronically,
and what other supporting documents and oral evidence we would need to prove the client’s case. We
found, like others have before us, that the Evidence Act R: E 2002 as amended lagged behind the
electronic revolution. We knew then that we could not rely on the electronic documents as the primary
documentary evidence. Thus it within this introduction I intend in this question to show the current position
of the law with regards to evidence relating to electronic records and finally, to give opinion on the steps
taken so far adequately address the challenges raised by the impact of ICT on rules of evidence in
Tanzania
It should be noted that the rapid increase of employing IT in daily life in Tanzania has brought many
challenges. The Tanzanian courts for quite a long time have been relying on the Common Law doctrine of
Best Evidence Rule to which the primary evidence in most cases is the written and signed or authenticated
documents103.However the trend has changed recently. This paper therefore tries to give the highlight of
Electronic Evidence in Tanzania.
It was not until 2000 when the wisdom of the High Court of Tanzania was called upon to rule whether
electronic evidence is admissible as best evidence in the case of Trust Bank Ltd v. Le-Marsh Enterprises
Ltd., Joseph Mbui Magari, Lawrence Macharia104 in this case the court ruled that the electronic evidence
is admissible in Tanzania courts and this was a departure from the strict rule of best evidence rule.
In admitting electronic evidence the judge stated that the court should not be ignorant of modern
business methods and shut its eyes to the mysteries of the computer. 105 This decision shows the judicial
activism and the role of Judiciary in filling the gaps left by the legislature.
The Legislature106 on the other hand responded by enacting Electronic Evidence Amendment Act 2007
which provided provision for the reception of electronic evidence in courts of law in Tanzania. The new
section has been added in the Tanzania Evidence Act 1967, the said section is section 40 A.
This section provides inter alia that in any criminal proceedings-Information retrieved from computer
systems, networks or servers; or records obtained through surveillance of means of preservation of
information including facsimile machines, electronic transmission and communication facilities; the audio or
video recording of acts or behaviours or conversation of persons charged, shall be admissible in evidence.
Section 76 of the Tanzania Evidence Act was also amended to the effect that the bankers book
include the records kept or information system including but not limited to computers and storage devices ,
magnetic tapes, microfilm, video or computer display screen or any other form of mechanical or electronic
data retrieval mechanism.

103
http://www.uneca.org/aisi/nici/Documents/CyberLawsEJust2006/CYBER%20LAW-EAC%20by
%20Adam%20Mambi.ppt visited on 09/7/2014
104
Commercial Case NO. 4 of 2000
105
Trust Bank Ltd. V. Le-Marsh Enterprises Ltd., Joseph Mbui Magari, Lawrence Macharia
( supra).
106
www.parliament.go.tz visited on 10/7/2014

36
 Section 78 of Tanzania Evidence Act is also amended to include Section 78A a printed out records
kept or information system including but not limited to computers and storage devices , magnetic tapes,
microfilm, video or computer display screen or any other form of mechanical or electronic data retrieval
mechanism or other process which in itself ensures the accuracy of such print out, shall be received as
evidence.
Section 78A (2) provides that the records received under section 78A (1) shall be deemed to be a
primary evidence and a “document”107 for the purpose of section 64(1) of the Tanzania Evidence Act. 108 It is
worthwhile to not that the wording of section 40A indicates that the provision is limited to criminal
proceedings and not applicable in Civil suits proceedings.
In conclusion suffice to say that Tanzania response to IT challenges is not only in admissibility of
electronic evidence but also have gone as far as enacting other IT related legislations 109 and the National
ICT Policy of 2002 which indicates the vision of Tanzania government on ICT sector.110

23. The evidence of any Medical doctor, whether a police surgeon or not, should be accepted as
evidence of a professional man giving independent expert evidence with the sole desire of
assisting the court, unless the doctor himself shows that his evidence ought not to be
accepted.
With illustration from decided cases, assess whether the above statement portrays the
position of law in Tanzania on the subject. What are the exceptions to the rule?
In this question I am going to illustrate from decided cases, assess whether the above statement
portrays the position of law in Tanzania on the subject and finally to explain the exceptions to the rule if
any.
This question based in opinion or expert evidence. By definition, opinion evidence refers to evidence of
what the witness thinks, believes, or infers in regard to facts, as distinguished from personal knowledge of
the facts themselves.
in section 47 of TEA provides that When a court has to form an opinion upon a point of foreign law, or
of science or art, or as to identity of handwriting or finger or other impressions, the opinion, upon that point
of persons (generally called experts) possessing special knowledge, skill, experience or training in such
foreign law, science or art or question as to identity of handwriting or finger or other impressions are
relevant facts.
In common law jurisdictions the general rule is that a witness is supposed to testify as to what was
observed and not to give an opinion on what was observed. However, there are two exceptions to this rule:
expert evidence and non-expert opinion given by laymen which people in their daily lives reach without
conscious ratiocination.

107
However there is ambiguity here, does this mean the printed out information or even the
information in the soft copy ( the information recorded or stored in the computer or other electronic
device as stated in section 40A before being printed out) ? Or any form be it soft copy or hard copy?
108
Act No. Of 1967
109
Copyright and Neighbouring Rights Act 1999 and the Tanzania Communications Regulatory
Authority Act 2003, all these Acts can be found at www.parliament.go.tz
110
http://www.tanzania.go.tz/pdf/ictpolicy.pdf visited on 10/10/2007

37
 In Tanzania, the general rule is that the opinions of witnesses are not admissible. Witnesses are
normally confined to stating the facts. The reasoning behind this rule is that it is the role of the court to form
any opinions which need to be formed, and there is a risk that the court may be unduly influenced by the
opinion of a witness who may not be as impartial as the court, and the court must draw its own inferences
from the facts stated.

In general, witnesses should testify only as to the facts observed and should not give opinion. 111 The
main rationale for such a rule is that the admission of opinion evidence would not assist, or might even
mislead, the court and in particular the jury. This is because opinion evidence is usually irrelevant.
Moreover, admission of such evidence would usurp the functions of the jury, which alone should be the
tribunal of fact and draw its own inferences.112

In the case of Davie v Edinburgh Magistrates give position of the facts upon which an expert opinion is
based must be proved by admissible evidence. While in the case of R v Cox 113 the duty of experts is to
furnish the judge with the necessary scientific criteria for testing the accuracy of their conclusions, so that
the judge or jury can form their own independent judgment by the application of these criteria to the facts
proved.

The exception of this rule is those based under hearsay rule explained in question number 18

24. (a) What is a dying declaration and how is it proved?

(b) If the person who made the declaration happens to live can it still be
admissible in evidence
(c) Is a dying declaration admissible a civil case?

The term dying declaration is the statement relating to the death. It happen when the person under
expectation of death utter or speaks the words relating to his causes of death. In other words, dying
declaration has defined as a statement made by a person as to the cause of his death or as to any of the
circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s
death comes into question
To support the above definition section 34(a) of the Tanzania Evidence Act constitutes what is
called dying declaration at common law. A dying declaration defined in the oxford companion to law to
mean “a verbal or written statement made by a dying person which although not made on oath or in the
presence of the accused is admissible in evidence on an indictment for murder or manslaughter of that
person provided the person making it had a belief without hope of recovery that he was about to die shortly”
Take note that the above definition explains the English position of law. In Tanzanian position is
different with the above position, in this country the dying declaration is related to any of the circumstances
of the transaction which resulted in this death where the question of death is in issue. In such
circumstances, the dying declaration is relevant and admissible whether or not the deceased was under the
expectation of death.

111
Tapper, Colin (2004). Cross & Tapper on Evidence (10th edn). UK: Lexis Nexis. p. 556.
112
Tapper, Colin (2004). Cross & Tapper on Evidence (10th edn). UK: Lexis Nexis. p. 558.
113
[1898] 1 QB 179

38
 This position is the same in Kenya, Uganda and India as compared to the English Law where the
circumstance is that the maker is in imminent danger of death. He must have completely lost hope and
steamed must have been made contemporaneously with the act of death. Under the Tanzania Evidence
Act 1971 the statement is admissible even if it was made before the cause of death has become known or
even before the deceased had any reason to believe or anticipate death. What is important is the identity of
the declarant before it was made.
The dying declaration can be proved by these ways, firstly, the burden of proof rests on the person
who wants to rely on it and in most cases it is the prosecution side. Secondly, the dying declaration can be
proved by evidence of a person who either heard the deceased taking it or who made note on the
deceased is statement but the statement of the maker should be given in its originality. Thirdly, dying
decoration can be objected by army contradiction statements made by the deceased before or after the
declaration.
In the case of R .v Marwa114 shows the legal requirement where the court held that where
circumstance exist showing that the deceased could not have been mistaken in his identification of the
accused a conviction can result even through such was the only evidence against an accused person. The
learned judge added “However it is only on rare occasion that such evidence would be acted on without
corroboration”
(b) If the person who made the declaration happens to live can it still be admissible in evidence?
Frankly speaking if the person who made a declaration happen to live, that declaration can not be
admissible due to the fact that in order to the dying declaration to be admissible two conditions must
existing namely
(1) The person who made the statement or declaration is really dead. This point is illustrated in
the case of Hamis Said Mchana v R115 where the appellant was charged with and convicted of murder.
The trial judge based the conviction dying declaration. Also in the case of Africa Mwambogo v R116 the
appellant was charged with and convicted of murder in convicting the trial judge relied on a dying
declaration in which the deceased persistently applicant the appellant as his assailant.
(2) Under this the dying declaration is admissible when the alleged declaration was that
which was made by the deceased (it must be the original statement) and such statement must refer to the
cause of its winterers, death or the circumstances of his death or the transaction leading to his death as it
discussed in the case of Pius Jasunga v R117 where the court held inter alia that the admissibility of a
statement by a person who has died as to the cause of death depends on the weight to be attached to such
statement being less than attached to a dying declaration in England and depending to a great extent on
the circumstances in which it was given.
Therefore it is true that if the person who made a declaration happen to live, that declaration cannot
be admissible

(c) Is a dying declaration admissible in civil case?

114
(1971) HCD No. 473.
115
(1984) TLR 319 (CA)
116
(1984) TLR 204.
117
(1954) 21 EACA 331.

39
 The answer is yes. But it depends where it arose. In Tanzania dying declaration can be admissible
in civil. But the position is deferent with the legal passion in English. In England such declaration are
admissible under in homicide cases while in Tanzania dying declaration may also be used in civil cases
where the cause of death of the person which made the statement comes into question.

25. Discuss the law and practice regarding facts judicially noticed
In this question I am going to discuss on the law related to the facts judicially notices under the law of
evidence in Tanzania.
The general rule is that all facts in issue or relevant facts in a given case must be proved by evidence
i.e. by testimony, documents and things. In consequence the court cannot act on material which the parties
have not had the opportunity of rebutting or qualifying whether or not that material is obtained privately as
per Reynolds v. Llanelly Associated Tinplace Co. Ltd.118.
However certain facts are beyond serious dispute, so notorious or of such common knowledge that
they require no proof and are open to no evidence m rebuttal. Examples include the fact that the gestation
period of human beings is nine months that Mount Kilimanjaro is in Tanzania etc. It is in this context that
common law has developed certain exceptions to the general rule. The main exception was stated by
Isaacs, J., in the case of Holland v. Jones 119 in the following words: "Whenever a fact is so generally
known that every ordinary person may be reasonably presumed to be aware of it, the court "notices" it,
either simpliciter or if it is at once satisfied of the fact without more or after such information and
investigation as it considers reliable and necessary in order to eliminate any reasonable doubt”
In short judicial notice is the cognisance taken by the court itself of certain matters which are so
notorious, or clearly established, that evidence of their existence is deemed unnecessary.
Under Tanzania Evidence Act have two main exceptions to the general rule that all facts in issue or
relevant facts must be proved by evidence. First facts judicially noticeable section - Sections 58 and 59 of
the TEA and second facts admitted by the parties to the proceedings 120, '"Whenever a fact is so generally
known that every ordinary person may be reasonably presumed to be aware of it, the court "notices" it,
either simpliciter or if it is at once satisfied of the fact without more or after such information and
investigation as it considers reliable and necessary in order to eliminate any reasonable doubt."
In the facts Judicially Noticeable section 58 of the TEA clearly states that no fact of which the court
shall take judicial notice need to be proved. This rule is based on the ground that there are many facts of
public and universal nature that are so well known that the courts have to take judicial notice of them
without any further proof. Generally matters directed by the statute to be judicially noticed or which have
been so noticed by a well established practice or precedents of the courts must be recognized by the
judges but beyond this they have a wide discretion and may notice much which they cannot be required to
notice.
The list of facts, which the court: is permitted to take judicial notice, is given in section 59 of the TEA.
However the list provided in the section, as already hinted above, is not exhaustive but inclusive i.e. courts

118
[1948] All E.R. 140
119
(1917) 23 C.L.R. 149 at p. 153
120
- sect. 60 of the TEA

40
are not prohibited from taking such notice on matters not contained in the section. For example in the case
of Amiri Rashidi v. R121 where the court was satisfied that evidence available in court was sufficient to
identify what was being, sold and the court took judicial notice of the fact that 'rnbege' is pombe brewed
from bananas122.
The list of facts that the court is required to take judicial notice under Section 59(1) of TEA includes
following:
(i) all written laws, rules, regulations, proclamations, orders or notices havingforce of law now or
heretofore in force or hereafter to be in force, in any part of the United Republic as per For
example in the case of Phurmon Singh v.R.123 the court took judicial notice of a Government
Notice issued under the Defence (Controlled Produce) Regulations of 1946. In Saleh
Mohamed v. R. (1953) 20 EACA 141 the court added that the correct interpretation of section
57(i) of the Indian Evidence Act [section 59(i) of the TEA] is that the court must take judicial
notice of all Ordinances and Regulations in the country. See also the case of Haji bin Khamisi
v. R. [J969] BCD n. 119.
(ii) the existence and title of societies or other bodies the registration of which has been notified in
the gazette. Read the case of Anage Temu v. R. [1967] HCD n. 404.
(iii) the course of the proceedings of the Parliament
(iv) all seals of the courts of the United Republic duly established and notaries public and all seals
which any person is authorized to sue by any written law.
(v) The accession to office, names, titles, functions and signatures of the persons filling for the
time being any public office in any part of the United Republic, if the fact of their appointment
to such office is noticed in the gazette. (vi)The existence, title and national flag of every state or
sovereign recognized by the United Republic.
(vi) The division of time, the geographical divisions of the world, and public festivals, feasts and
holidays notified in the Gazette. In the case of Commissioner of Customs v. S. K
Panachand124 the court took judicial notice of the distance between Nairobi and the Hague.
(vii) The commencement, continuance and termination of hostilities between the United Republic
and any state or body of persons. In an English case of' R v Boirill ex p. Keuchenmeumer
125
the question was whether an applicant for a writ of habeus corpus was an alien enemy, the
Court of Appeal of Britain took judicial notice of the fact that the country was still at war with
Germany accepting as conclusive a certificate of the Foreign Secretary to this effect.
(viii) The names of members and offices of the court, and of their deputies and subordinate officers
and assistants, and also of all officers acting in execution of this process, and of all advocates
and other persons authorized by law to appear or act before it.
Apart from this section 59 of the TEA does not justify the court in treating the opinions or deductions of
authors of such books as evidence for the purpose of supplementing or rebutting evidence that has already
been given. These should only assist the court in understanding the evidence brought before it. For a better

121
[1968] HCD n. 302
122
See also the case of R. v. Saleh Mohamed (J 953) 20 EAC A J 44.
123
[1951] 1 T.L. R. (R) 345
124
[1961] E.A. 303
125
[1947] 1 K. B. 41

41
elaboration on the working this read the following cases: K rumuna v. R.126; R.v. Kiswaga Luguna 127R. v.
Murwira128 and DPP v. Henry129.
As a matter of f acts Admitted by Parties 130, section 60 of the TEA relates to civil suits. This section
deals with admissions of the parties, oral or documentary, during trial in civil suits i.e. at or before the
hearing. Proof of such facts is dispensed with on the ground that the facts admitted need no further proof.
The proviso to section 60 gives power to the court to require a fact admitted by the parties to be
proved in court. This is intended to guard against un-authentic or fictitious admissions. Therefore the court
cannot be compelled to accept an admission and it may require any fact to be proved by evidence in the
ordinary way as laid down in the proviso.
to wind up the above discussion one can say that like presumptions the presences of the rules
ousting the necessity of proof in matters judicially noticeable also help to facilitate court proceedings. Under
this, for example, the court takes judicial notice of all the laws of Tanzania. Were this rule not existing
parties would have been required to prove every law on which they base their prayer for a judgment in their
favour.

26. Discuss the law relating to corroboration in Tanzania.

The question requires discussing in details the law relating to corroboration in Tanzania. Thus the
forthcoming discussion I am going to give the concept of corroboration evidence to show the position of
corroboration evidence in the law of Tanzania.
By definition Corroborating evidence (in "corroboration") is evidence that tends to support a proposition
that is already supported by some initial evidence, therefore confirming the proposition. For example, W, a
witness, testifies that she saw X drive his automobile into a green car. Meanwhile Y, another witness,
testifies that when he examined X's car, later that day, he noticed green paint on its fender. Or there can be
corroborating evidence related to a certain source, such as what makes an author think a certain way due
to the evidence that was supplied by witnesses or objects.
Lord Diplock in DPP v Hester observed that “an examination of the basic 19 th century cases makes it
plain that in judgments ‘corroboration' was not used in other sense than ‘confirmation'.” Finally, Lord
Hailsham in DPP v Kilbourne opined: “The word ‘corroboration' by itself means no more than evidence
tending to confirm other evidence. In my opinion, evidence which is (a) admissible and (b) relevant to the
evidence requiring corroboration and, if believed, confirming it in the required particulars, is capable of
being corroboration of that evidence and, when believed, is in fact such corroboration.”
According to section 143 of the TEA no particular number of witnesses is required to prove any
particular fact. However there are circumstances in which corroboration is, from the nature of the case,
essential or the law specifically provides that evidence of one witness cannot form the basis of a conviction
unless it has been corroborated in some material particular.

126
(1955) 22 EACA 369
127
(1940) 15 EACA 50;
128
(1935) 2 EACA 66
129
[1973] LRT15
130
(Section 60)

42
 As for the latter situation a good example is evidence of a single witness in charges under sections 104
and 105 of the Penal Code. Apart from the requirement of law there have developed rules of practice,
which have attained the force of law, requiring corroboration of evidence in certain circumstances.
Examples of situations of this nature include, dying declarations, retracted and repudiated confessions,
evidence of interested witnesses, identification by single witnesses where the condition for such
identification are not favorable etc.
The requirement for corroboration is not a sine qua non of accepting the evidence in all cases. In some
situations the law dispenses with the requirement of corroboration if the court is satisfied that the witness is
saying nothing but the truth. A good example of such a case is section 127(7) of the TEA where, in sexual
offences, uncorroborated evidence of a child or the victim of the sexual offence may be accepted as
sufficient evidence for a particular offence.
Before getting into specific cases let us examine the meaning and rationale of corroboration. In its
simplest form one can say that corroboration is evidence tending to confirm some fact of which other
evidence is given. Lord Reid in the case of DPP V Kilbourne 131once elaborated that when in the ordinary
affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see
whether it fits in with other statements or circumstances related to the particular case; the better it fits in the
more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by
other statements or circumstances with which it fits in.
In another case of R V Baskerville132 the court said:"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 committed, but also that the prisoner committed
it...the corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is
merely circumstantial evidence of his connection with the crime."
The requirement of independent evidence was, for example the subject in the case of R v
Whitehead133 Lord Hewart C.J. held that this evidence was not capable of amounting to Corroboration
because it emanated from the girl herself.
Other important principles regarding corroboration of evidence include:
1)where the complainant is of unreliable character corroboration is desirable Mohamed Musoma v R
134
where the court held that i) In law the evidence of one witness, if believed, is sufficient to found a A
conviction; (ii) when a witness is unreliable it becomes desirable, if not necessary, to look for corroboration;
(iii) there could be no corroboration in this case not because of the peculiar B setting but largely because
the complainant himself actively removed that possibility.
2) Evidence of persons who have their own interests to serve cannot corroborate the evidence of
others (co-accused) as illustrated in the case of Asia Iddi v R135 where the court held that (i) Conviction
cannot be based solely on a confession by a co-accused. There must be, in addition, other independent

131
[1973] AC 729 at p. 750
132
[1916] 2 KB 65S
133
1929} 1 KB 99 (CCA.)
134
[1989] TLR 227 (HC).
135
[I989JTLR174 (HC)

43
testimony to corroborate it; (ii) evidence of a person who has an interest to serve also needs corroboration
as such it cannot be used to corroborate other evidence. Obiter: The purposes of reading over a charge
sheet to the accused are, inter alia, to allow the magistrate an opportunity to correct any errors apparent on
the charge sheet lest they embarrass the accused person.
3) Evidence which needs to be corroborated cannot corroborate other evidence (Accomplice) as it
discussed in the case of Mkumbwa Said omar v SMZ 136where the court held that P.W.4 was a witness
whose evidence needed corroboration before it could be accepted and acted upon. Such evidence which
requires corroboration could not itself corroborate accomplice evidence.
However under section 142 of the TEA an accomplice is a competent witness against an accused
person and conviction is not illegal merely because it proceeds upon an uncorroborated testimony of an
accomplice. However where a police decoy is directly interested in the subject matter then his evidence, as
a matter of practice, requires corroboration. See the cases of Mohamed Katindi v. R [1986] TLR 134 and
Davda v R [1965] EA 201. Other cases dealing with the issue of corroboration of accomplice evidence
generally include Saidi Hatibu v R [1982] TLR 353; Selemani Rashidi v R [1981] TLR 257; and Geoffrey
James Thuva and Others v R [1980] TLR 197
4) Confession of a co-accused must be corroborated before founding a conviction on it as
discussed in the case of Thadei MIomo and others v R137 where the third appellant attacked his
conviction which was based on the repudiated confessions of the co-accused. The court held in alia that
there was corroborative evidence to support the conviction of the third appellant on the basis of the
repudiated confessions of his co-accused.
5) Courts look for corroboration when, in the light of all the evidence, a witness is worthy of belief.
The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or
incredible but only to confirm or support that which as evidence is sufficient and satisfactory and credible as
discussed in the case of Mbushuu alias Domonic Mnyaroje and Another v R 138 where the court held
inter alia that courts look for corroboration when, in the light of all the evidence, a witness is worthy of
belief. The purpose of corroboration is not to give validity or credence to evidence which is deficient or
suspect or incredible but only to confirm or support that which as evidence is sufficient and satisfactory and
credible; (ii) Since PW1 and PW2 are not credible then there cannot be corroboration from PW2 or
anybody;
A number of points have traditionally been made in favour of a general corroboration requirement.
The most outstanding include the following: (i) Such a rule prevents a man of honor from being destroyed
by the assertions of a single rogue. (ii) The second justification is based on what Montesquieu said: '
reason requires two witnesses: because a witness who affirms, and a party accused who denies, makes
assertion against assertion, and it requires a third to torn the scale.' (iii) A general corroboration rule
protects the innocent because ' it is hard for two or so to agree upon all circumstances relating onto
analyze, not to thwart one another139.'

136
[1992] TLR 365 (CA)
137
[1995] TLR 187 (CA).
138
1995] TLR 97(CA).
139
For further analysis in corroboration read the following cases: Ishwarlal Purohit V R [1963] 9 EACA
58; Lenton V R [1963] EA 9 and Mansukh V R (1971) HCD n. 440.

44
 In short as indicated above there are a number of situations requiring corroboration such as
Accomplice as discussed in the case of Davies V DPP 140, Githae s/o Gathigi and Anor V. R141, Kamau
V R 142 Fanuel V R143. Pascal Kitigwa V R 144 Habib V R 145, Dying Declaration as discussed in the R v
Eiigu s/o Odel and Anor146; R v Muyovya Bin Msumu147 and Pius Jasunga V R .148 R v Joseph
Ngaikwamo 149, R v Rutema Nzungu 150 R v Said s/o Abdulla (1945) 12 EACA 67) Mbingu v Uganda
[1965] EA 71), R v Muyovya Bin Msuma (1939) 6 EACA 128), Child with tender age as discussed in the
case of Shori Andrew v R. etc
To sum up the above discussion as a matter of practice the requirement of corroboration of circumstantial
evidence in certain situations does not mean that it is evidence of a weaker kind. Circumstantial evidence is
as good as direct evidence provided that all the requirements of the law are met. The same is true in other
situations where corroboration is required. The purpose of the law and practice in such situations is to
ensure that justice is done.

27. The Parole evidence rule requires oral evidence to be direct” Critically discuss this statement
This discussion is centred on the statement that “The Parole evidence rule requires oral evidence to be
direct”. I will start by giving the meaning of the term evidence and then a critical discussion of the
statement. At the end, a conclusion of my discussion will be offered.
To start with, section 3(1)(d) of the Evidence Act 151, states that “evidence” denotes the means by which
an alleged matter of fact, the truth of which if submitted to investigation, is proved or disproved; and without
prejudice to the preceding generality, includes statements and admission by accused person. Again, the
meaning of fact is given under the same section to mean (a) any thing, state of things, or relation of things,
capable of being perceived by the senses; (b) any mental condition of which any person is conscious.
Part VIII of the Evidence Act concerns with Relevancy of opinions of third person. Section 47 of the
Evidence Act states that when a court has to form an opinion upon a point of foreign law, or of science or
art, or as to identity of handwriting or finger or their impressions, the opinion, upon that point of person
(generally called experts) possessing special knowledge, skills, experience or training in such foreign law,
science or art or question as to identity of handwriting or finger or other impressions are relevant facts.
Section 61 of the Tanzania Evidence Act provides that all facts, except the contents of document, may
be proved by oral evidence. However the general rule of parole evidence requires that oral evidence must
be direct. This is provided under section 62 of the Act where it has been provided that:

140
[1954] AC 378
141
(1956) 23 EACA 440
142
[1965] EA 501
143
[1989] TLR 22
144
[1994] TLR 65(CA)
145
(1934) 1 EACA 191
146
(1943) 10 EACA 90
147
(1939) 6 EACA 128
148
(1954) 21 EACA 331.
149
[1977] LRT No. 6.
150
(1967) HCD N. 445
151
Tanzania Evidence Act, Cap 6 R.E. 2002.

45
 (a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
(c) if it refers to a fact which could be perceived by any other sense, or in any other manner, it must be
the evidence of a witness who says he perceived it by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of
the person who holds that opinion or, as the case may be, who holds it on those grounds:
(a) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of
the person who holds that opinion or as the case may be who holds it o those grounds.
Provided that the opinion of expert expressed in any treaties commonly offered for sale and the
grounds on which such opinions are held, may be proved by the production of such treaties if the author is
dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness,
without any amount of delay or expense which the court regards as unreasonable. Therefore, for the
evidence to the case to be accepted, must meet all the conditions above.
On the other hand, in every rule there is an exception. In our case here, it is the dying declaration
evidence provided under section 34 which is admissible in law. This is the statement made by a person
who is dead or unknown or who cannot be called or sometimes are those exceptions of hearsay rule that
the statement which made by the person who are unknown or who cannot be found, are themselves
admissible in the following cases when the statement is made by a person is to the cause of death or as to
any other circumstances of the transaction which resulted in his death such statement are admissible. In
Premji Culj v R, the accused threatened the deceased young brother that “I will kill you and I am going to
show your brother” at the same time the brother was already killed. So the words spoken related to the act
so accused will be liable so the person who made the sentence under expectation of admissible into the
issue to be discussed.
Another situation is when the statement gives the opinion of such person, as to the existence of any public
right or custom or matter of public original interest, of the existence of which, if it existed he would be
aware, and when such statement was made before any controversy as to such height, custom or matter
had arisen. Section 34 (d) gives the position.
Again, section 34A states that “in any criminal proceedings direct oral evidence of a relevant fact
would be admissible any statement contained in any writing, record or document shall be considered as an
evidence of the fact it he statement was made as a memorandum, the writing record or document is forms
part of trade takes place within reasonable time.”
Lastly, question or be statement made by the person under ordinary cause of business will be
admissible on the face of law.
Sections 100 – 109 deal with parole or oral evidence that where there are written documents it cannot
be proved by any other written document or oral evidence because this is inadmissible other document or
evidences extraneous to the relevant document. Parole evidence is inadmissible where the document is
compulsorily registered to and it has in fact been reduced into writing and if a document has been reduced
into writing although there is no composition at law that it should be reduced into writing. The exception to
this above rule of section 100 is that a probate can be admitted although technically it is not evidence under
section 67 and 68 of the Tanzania Evidence Act. Under this, a certified copy of a will can be admitted. In
the case of Choitra v Lazar, it was observed that section 100 of the Act debars the introduction of parole
evidence in variation into the memorandum which can be taken as a contract of sale of goods.
Further more, it says that when the writing itself is not in issue the court may admit parole evidence to
prove the substance in issue. In the case of Sheikh Abdullah v Maija Binti Salim, it was held that section
100 does not debar parole evidence in addition to writing which is not envisaged under section 100. Not

46
only that but also in Folks v Tharkar, it was held that parole evidence to the change of the date is allowed
on the ground that a data is not a term of a contract.
To sum up, as a general rule, the parole evidence rule requires oral evidence to be direct. The above
discussion has illustrated that.

28. Discuss the position of secondary evidence in the law of Evidence. State clearly how may be
proved.

The term document is defines as somethings that records or transmits information, typically in writing
on the paper. For the purpose of providing evidence to the court, documents include books, maps, plans,
drawings, photographs, graphs, discs, tapes, soundtracks, and films. Some legal documents those are only
valid if they meet certain requirements.

In Tanzania Evidence Act define document as- “means any writing, hard writing, typing writing,
printing, Photostat, photography and every recording upon any tangible thing, any form of communication
or representation by letter, figures, marks or symbols or by more than one of these means shish may be
used for the purpose foreordain any matter provided that such recording regionally permanent and legible
sight.

But the definition the term documentary evidence means ‘’all documents produced as evidence before
the court’’. It should be noted that documentary evidence is evidence written rather than oral form. The
admissibility of a document depends upon proof of the authenticity of the document and also the purpose
for which it is being offered in evidence. If it will be necessary to consider the application of the rule against
hearsay and its for the document.

As a general rule the evidence should proved by primary evidence unless secondary evidence
become admissible for any of the reason mentioned in section 67 of the Tanzania Evidence Act in which
case secondary Evidence of the content of a document may be prove for the inspection of the court.

To say in short the rule laid down under section 64 and 65 of the Tanzania Evince Act general means
that the content of a document must be proved by primary evidence under secondary Evidence becomes
admissible for any of the Tanzania evidence Act in which case secondary evidence of content of a
document may be proved for the inspection of the court.

According to section 63 of the Act provides that ‘’the contents of documents may be proved either by
primary or by secondary evidence’’ Section 64, (1) of TEA defined primary evidence as the document itself
for the inspection of the court. The underline principle which seeker for the protection of the original
document is that the best evidence must be given by which the nature of the case permits.eg a court is
signed between A and B. the contract is written two times over and each part signed by each of the parties
and such party retain in a copy the contract is said to be Duplicate original and where it is excuted three
parts are called Triplicate original.

47
 Where a document is executive in several parts or counter parts each part is primary evidence the
document. An instrument is said to be executed in several parts when it is written out and signed or sealed
by all the parties to the instrument each part retaining one written to writer and signed or sealed.

Under section 64 (4) TEA provides that where a number of document are all made by a uniform
process such as printing, lithographic photographic etc they are prime as document of each other. But a
reproductive of any of the document made by a uniform process all just be secondary evidence of the
original. In case of carbon copy. These will normally be the primary evidence of the content of the
document because they are made by one uniform process.

In the case of DPP vs Akber Rashid Nathan the court was held that the high court had been wrong to
refuse to accept as primary evidence a loose volume produce by the international Air Transport Association
entitled Agency list produced by a process capable of making many other document uniforms with the
leaves of the where produced. It was that the national behind the requirement of primary evidence is on the
necessity to ascertain the message as regards contents construction or misconception.

Under section 65 describes the circumstances under which secondary evidence may be permitted as
evidence. It is therefore possible for a piece of evidence fought to be produced is a patient case to quality
the right secondary Evidence under section 65 but the same may became inadmissible under section 67.

In Hirdson v Ashby it was held that photographs can be admitted as evidence to show whether a
certain area is part of a river or not But in order to prove such the evidence of the photographer must be led
to prove the correctness of the photograph itself and that an oral account of a photograph or another
account of mechanical process is not a secondary evidence.

It should be noted that secondary must only be produced when the contents of the original
document are not available as per section 62 therefore the reasons behind for admissibility of secondary
document as follows.

(i) when the original is in the power or possession of the opposite party as per Lakman Ramji v.
Jessa and Sons152; or of a person who is out of reach of or not subject to, the process of the court
or a person legally bound to produce it, and when, after the notice to produce is given such person
does not produce it.
(ii) when the existence, condition or contents of the original are admitted in writing by the person
against whom it is proved, or by his representative in interest as per the case of Henry Mike v.
R153.
(iii) When the original is lost or destroyed. In Jasson Rwebangira v. R154 the court said before section
67(1) (c) can be operative the party seeking to produce secondary evidence is generally expected
to show that the original document existed and that a search has been made unsuccessfully and
must either prove its destruction positively or at least presumptively. A mere causal report or
information that the document had disappeared is insufficient.
(iv) when the original is of such a nature as not to be easily movable as Owner v. bee 155
152
[965J E.A 125 (K))
153
[1975] LRT n. 67
154
[1975] LRTn. 26
155
[1914] 1 KB 105.

48
(v) When the original is a public document within the meaning of section 83 of the TEA;
(vi) When the original is a document of which a certified copy is permitted by this act or any other
written law.
(vii) When the original consist of numerous accounts or other documents which cannot be conveniently
examined by the court as per J. B.M.D 'Sa v R156 and Edward v.R. 157

29. A document is an instrument on which relevant facts are recorded means of letters, figures or
marks… within the rationale for the BEST EVIDENCE RULE, a document is any physical
embodiment of information or ideas, which may be evidentially used. Despite the obvious
importance of the BEST EVIDECNE RULE there are many cases where the law of evidence
would allow certified copies to be given…There are also procedures for admissibility of facts
written, on tombstones, road signs…And with light touch, a total on a body part may be
regarded as documentary evidence…”

In this work, I am going to discuss about the definition, scope and rationale for relevance admissibility
of documentary evidence under the Tanzania Law of Evidence Act (Cap. 6. R.E. 2002)
Section 3 of the Law of Evidence Act158 provides the meaning of documents as follows: “document”
means any writing, handwriting, typewriting, printing, Photostat, photography and every recording upon any
tangible thing, any form of communication or representation by letter, figures, markets or symbols, or by
more than none of these means which may be used for the recording any matter pounded that such
recording is reasonable permanent and readable by sight159.
Moreover the same section of the above Act provides that “documentary evidence” mean all
documents produced evidence before the court160.
Section 63 the Law of Evidence Act provides that contents of documents may be proved either by
primary or by secondary evidence. A document is regarded as primary evidence when the document itself
is produced for inspection of the court even if it is in parties. This is per section 64 (1)-(3) of Tanzania
Evidence Act. Subsection (4) of the Act above provides that “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 origin, the are not primary evidence of
the contents of the original. Section 65 (a)-(e)161 goes on providing for the documents that are regarded as
secondary evidence. These include certified copies issued officially such as copies of judgment or decree.
So uncertified copies will not be entertained before the law. For them to be admissible, must be proved by
the evidence of the original copies. In the court comparison will be done by having the present copy
checked against the other.
In the case of Hindson v Ashby162 it was held that photographs can be admitted as evidence to show
whether a certain areas is part of a river or not. But in order to prove such the evidence of the photographer
must be led to prove the correctness of the photography itself and that as oral account of photograph or
another account of mechanical process is not a secondary evidence.

156
[1957] EA 627 (U)
157
[1987] TLR 122,
158
Tanzania Evidence Act Cap 6 R.E. 2002
159
Ibid.
160
Ibid.
161
Ibid.
162
(1996) 2 ch p. 21.

49
 Therefore, the general principle is that documents must be proved by primary evidence except as
otherwise provided in this “Act. This is as provided by the Evidence Act, section 65. This implies that the
principle seeks for the production of original document due to the fact that evidence must be given by which
the nature of the case permits. The reason behind the requirement of primary evidence is on the necessity
to ascertain the massage as regards contents, construction or misconception. Thus, a party who wants to
rely on a document as evidence, will be obliged to produce the original document containing the subject
matter in issue. In supporting the above explanation, the case of Kanji Printing Works v Tanga District
Council163 is a relevant authority here.
In the case of Kaman Ranji v Shivji164 the court argued that the onus of showing that the document
has been lost or destroyed or that it cannot be produced in reasonable time is on the party who wishes to
give secondary evidence on its contents. It may not be necessary to prove the exact make and time of the
loss, but it is sufficient to show that the loss was not due to the fault of the party or his negligence. If the trial
court admits secondary evidence without proof of the loss or execution of the original the appellate court
will not interfere with the admissibility of the document.
In G. Pathal v Nathoo165 the court was held that where a case has been conducted before the trial
judge by both parties upon the footing that a document has been properly admitted in Evidence, it is not
open to a party on appeal to argue that owing to some defects I the proof the document ought not to have
been admitted.
Further more, under clause (d) of section 67, secondary evidence of the contents of a document
which are physically impossible or inconvenient to produce in the court are admissible for example,
inscription or walls or tombs, stones, surveyors marks on boundaries trees and any other example of the
like nature.
By way of conclusion, basing on the above explanation one can agree with the statement that a
document is instrument on which relevant fact are recorded men of letters, figures or marks within the
rationale for the BEST EVIDENCE RULE, a document is any physical embodiment of information or ideas
which may be evidentially used. Despite the obvious importance of the BEST EVIDENCE RULE, there are
many cases where the law of evidence would allow certified copies to be given. There are also procedures
for admissibility of fact written on tombstones, road sign. And with some light touch a tattoo on a body part
may be regarded as documentary evidence.

30. “The evidence of a handwriting expert is an opinion only, and the Court is not
bound by it”. Is this the true statement of the Law on expert opinion?

SEE QUESTION 23

31. With aid of decided cases discuss the value of evidence of a child of tender age.
Witnesses form the backbone of a legal system. They are the assurances of the trust of the citizens in
the justice dispensation system. However the quality of witness is also essential to be maintained, on the
parallel lines, or else the correctness of decisions cannot be warranted. In this context we bring to you the
law relating to child witnesses. It is within this introduction I intends in this question to discuss with aid of
decided cases discuss the value of evidence of a child of tender age

163
(1970) HCD 253.
164
(1965) EA. 87,
165
(1962) ED 372.

50
 When taking the evidence of child of tender years the court must ascertain as to whether the child
understand the nature of oath. This was well explained in the case of Jisho and Another . R166 when the
court held that the rule as laid down by the Court of Appeal in the case of KIBANGANY ARAP KOLIL v.
R.167 is that before a child is sworn in order to give evidence the court must investigate in order to ascertain
whether that child understands the nature of oath.” In the present case the young boy, as stated earlier,
gave evidence on affirmation. Before he was sworn the learned trial magistrate noted “…… he (the boy)
knows about the oath ……..” and immediately after that the boy was affirmed. It would seem clear that the
procedure as laid down in the case of KIBANGENY cited above was not followed, since there is no record
of investigation as made by the trial magistrate, and on that account I am of the view that the evidence of
this child was in- admissible.” (2) “Even assuming that the evidence of this child was admissible the
conviction would still be unsupportable on another ground.
In the case of PETRO MANGONGO KATWA v. R168 it was held that although the evidence of a child
given on affirmation does not strictly speaking require corroboration, yet the court should be very careful
before acting upon such evidence. In the present case the learned trial magistrate found that the evidence
of the child witness was corroborated by that of the complainant. It seems that this finding is not supported
by the evidence.” (3) “Having made that finding which as I have tried to show, is not supported by the
evidence the learned magistrate did not scrutinise the evidence of the child witness before acting on it as
required under the rule in Petro’s case. His failure to do so was a misdirection which I think amounted to a
ground on which the conviction of Erikado could also be said to be bad.” (4) Conviction on first appellant set
aside. Appeal of second appellant is dismissed.
In the case of Jeremius s/o Boramwendo v. R.169,S aidi, J. held that a conviction cannot be based
on the uncorroborated testimony of a child of tender years. In the absence of any special circumstances,
this proscription applies to any child who is less than fourteen years old. Citing Kibageny Arap Kolil v.
R.170, the conviction was quashed.
This is far from saying that evidence of tender years cannot be received in evidence. It can be
received but it cannot justify a conviction if it is uncorroborated. Under section 127 of TEA provides
provision for a person who may testify. It says that (1) Every person shall be competent to testify unless the
court considers that he is incapable of understanding the questions put to him or of giving rational answers
to those questions by reason of tender age, extreme old age, disease (whether of body or mind) or any
other similar cause.
(2) Where in any criminal cause or matter a child of tender age called as a witness does not, in the
opinion of the court, understand the nature of an oath, his evidence may be received though not given upon
oath or affirmation, if in the opinion of the court, which opinion shall be recorded in the proceedings, he is
possessed of sufficient intelligence to justify the reception of his evidence, and understands the duty of
speaking the truth.
In the Azaria s/o Mbuya v. R.171 where accused, a teacher, was convicted of assault. There was
evidence that he had questioned the complainant, a girl of 12 years of age, concerning her relations with a
boy in the school. The court was held that (1) the caning of another person may constitute assault, but the
use of force against another person is justified if exercised during lawful correction. (2) Corporal

166
(1971) H.C.D No 131
167
(1959) E. A. p. 92
168
1944) E. A. p. 100
169
( 1967) HCD NO 191
170
(1959) E.A. 92
171
1968 HCD PC) Crim. App. 11-D-67, 2/12/67,

51
punishment may be administered for serious breaches of school discipline. However, female pupils may
receive corporal punishment from male teachers only if no female teacher is at the school and such
punishment is administered by the head of the school or with his written authorization. (4) The unsworn
testimony of a child must be corroborated, but there was such corroboration in the present case. Appeal
dismissed.
Not only that but also in the case of Idefence Mpendakazi v. R.172 where the accused was
convicted of cattle theft. A confession which accused made before an Assistant Village Executive Officer
was admitted into evidence. The only other prosecution evidence was the testimony of a twelve-year-old
boy. The court was held that (1) A confession to the Assistant Village Executive Officer, who had the power
to arrest and detain persons suspected of having committed offences amounted to a confession to a police
officer and was inadmissible under section 25 of to a police officer and was inadmissible under section 25
of the Indian Evidence Act. (2) The testimony of the boy required corroboration and would not support a
conviction. The conviction was quashed.
In other jurisdiction from outside especially India, the same position has been applies. For example
in Rameshwar S/o Kalyan Singh v. The State of Rajasthan,173 this Court examined the provisions of
Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is
competent to depose unless the court considers that he is prevented from understanding the question put
to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body
or mind or any other cause of the same kind. There is always competency in fact unless the Court
considers otherwise.
Also in Mangoo & Anr. v. State of Madhya Pradesh, 174 this Court while dealing with the evidence
of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a
ground to come to the conclusion that the child witness must have been tutored. The Court must determine
as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from
the contents thereof as to whether there are any traces of tutoring.
In Panchhi & Ors. v. State of U.P 175, this Court while placing reliance upon a large number of its
earlier judgments observed that the testimony of a child witness must find adequate corroboration before it
is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that “the evidence
of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child,
his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must
be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed
by what others tell him and thus a child witness is an easy prey to tutoring.”
In addition to that in State of U.P. v. Krishna Master & Ors.176, this Court held that there is no
principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts
in his memory. A child is always receptive to abnormal events which take place in his life and would never
forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when
asked about the same in the future. In case the child explains the relevant events of the crime without
improvements or embellishments, and the same inspire confidence of the Court, his deposition does not
require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will
against any person. Therefore, there must be something on record to satisfy the Court that something had

172
(1967) HCD NO 124
173
AIR 1952 SC 54
174
AIR 1995 SC 959,
175
., AIR 1998 SC 2726
176
AIR 2010 SC 3071

52
gone wrong between the date of incident and recording evidence of the child witness due to which the
witness wanted to implicate the accused falsely in a case of a serious nature.
In view of the above, I can conclude this discussion by saying that the law on the issue can be summarized
to the effect that the deposition of a child witness may require corroboration, but in case his deposition
inspires the confidence of the court and there is no embellishment or improvement therein, the court may
rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater
circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that
a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to
whether child has been tutored or not, can be drawn from the contents of his deposition.

32. Outline the doctrine of estoppels under the law of evidence.

In this question I intend to outline the law relation to the doctrine of estoppels under the law of
evidence. Thus the work starting with giving concept of doctrine of estoppels and finally analyse the law
relating to the estoppels.
it should be noted that various attempts have been made to define the term estoppel. One such
attempt has been made by one, Sarkar who defines the term estoppel to mean: "... a rule by which a
person in some cases will not be allowed to plead the contrary of a fact or state of things which he has
formerly asserted by words or conduct."
Apart from this there are also attempted definitions in case law. For example in the case of Nurdin
Bandali v. Lombank Tanganyika Ltd 177, Newbold, J .A; elaborated the concept by saying that estoppel is:
"... primarily a rule of evidence whereby a party to a litigation is, in certain circumstances, prevented from
denying something which he had previously asserted to be.
It is important to emphasize that estoppels extend not only to man's declarations and acts, but also to
all persons through whom he claims. That means estoppels bind both parties and privies. The principle in
estoppel is that it would promote fraud and litigation if a man is allowed to speak against his own act or
representation on the faith of which another person was induced to take a certain course of action.
It is on this ground that section 123 of the TEA provides that “when a person has, by his declaration,
act or omission, intentionally caused or permitted another person to believe a thing to be true and to act all
upon such belief, neither he nor his representative in interest shall be allowed, in any suit or proceeding
between himself and such person or his representative, to deny the truth of that things."
Frankly speaking the rule of estoppels is based on equity and good conscience. The object of
estoppels is to prevent fraud and secure justice between parties by promotion of honesty and good faith.
However, it has to be born in mind that estoppels of all kinds are subject to one general rule: they cannot
override the law of the land. Therefore where a particular formality is required by statute no estoppels can,
generally at any rate, operate against it178.
it should be noted it is not easy to clearly classify estoppels. In the past the courts have distinguished
between legal estoppels and equitable estoppels but it has not been easy to draw a clear line of distinction
between the two. According to TEA, the doctrine of estoppels covers under section 123 up to 126. And
within these sections provides various types of estoppels as hereinafter mentioned.

177
1983] EA 304
178
For further understanding of the slight variations of this main principle read the cases of Western Fish Products Ltd v.
Penwish D. C. [1981 J 2 All E. R. 204 (CAJ.and Maharaj v. Chard [1986] AC 898 (P.C.)

53
 first, Estoppels of tenant or of licensee or person in possession: the provides that “No tenant of
immovable property or person claiming through such tenant shall, during the continuance of the tenancy,
be permitted to deny that the landlord of the tenant had, at the beginning of the tenancy, a title to the
immovable property; and no person who comes upon any immovable property by the licence of the person
in possession thereof shall during the continuance of such licence be permitted to deny that such person
had a title to such possession at the time when such licence was given.179
Secondly, Estoppels of acceptor of bill of exchange: the law 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. Provided
that the acceptor of a bill of exchange may deny that the bill was actually drawn or endorsed by the person
by whom it purports to have been drawn or endorsed.180
thirdly, Estoppels of a bailee or licensee: the law provides that “No bailee or licensee shall be permitted
to deny that his bailor or licensor had, at the time when bailment or licence commenced, authority to make
such bailment or grant such licence: Provided that if a bailee delivers the goods bailed to a person other
than the bailor, he may prove that such person had a right to them as against the bailor.
All the same it has not been easy to clearly distinguish them and that there arc overlaps among some
of these categories. Despite the aforesaid problems we snail, for the purpose of this study, classifies
estoppels in three main groups: estoppels by record; estoppels by deed; and estoppels by conduct.
In Estoppels’ by Record/Judgment, it is a matter of policy that, subject to appeal rights, the judgment of
a valid court of law acting within its cope of jurisdiction should be final and conclusive as between the
parties concerned. This is the reason why the doctrine of res judicata under section 9 of the Civil Procedure
Code Act is relevant. The operation of the principle of res judicata prevents a litigant from re-opening a suit
which has already been adjudicated upon as per Musa bin Khamis bin Junta el Nofti v. Kaporo bin
Kasibu Mnyamwezi181 .
In Estoppel by Deed, the Evidence Act does not expressly mention estoppel by deed. Estoppel by
deed is based on the principle that when a person has entered into a solemn engagement by deed under
seal with another party he or the person claiming through or under him shall not be allowed to set up the
contrary of his assertion in the deed as per Jenabai v. Shamsa 182 and Bowman v. Tailor 183, as well as
Baieman v. Hunt184 for the application of estoppel by deed.
In Estoppel by Conduct/Estoppel in Pais embraces all acts or statements of a party upon the faith
of which another reasonable party has been led to act and to change his position and which it would be
unfair to permit the first party to deny. The rule was authoritatively stated in the case of Pickard v. Sears185
in the following words: "Where one by his words or conduct willfully causes another to believe the existence
of a certain state of things and induces him to act on that belief so as to alter his own previous position, the
former is concluded from averring against the later a different state of things as existing at the same time."
There is a slight variation on the application of the principle in East Africa in respect to equitable
estoppel, as opposed to ordinary [legal] estoppel. The position is that it is not, as in the case of common
179
section 124 of Tanzania Evidence Act Cap 6 RE.2002
180
section 125 of Tanzania Evidence Act Cap 6 RE.2002
181
[1957] EA. 189. and For the further elaboration on how estoppel by judgment operates read the
following cases: Abdullahi Jiwani V.J.v. Pandya [J958] EA 521; New Brunswick Railway Co., v.
British and French Trust Cooperation [1939] AC 1; and R.v. Allan (1930) 12 KLR 90.
182
[1957] EA 227
183
(1834) 2A&E 278;
184
[1904] 2 KB. 530
185
(1837) 6A&E. 469 at p. 474

54
law estoppel, necessary for the person to whom the representation, in the form of a promise, is made to
have altered his position on the strength of the promise. In the case of Income Tax Commissioner v. A.K
186
Madam J clarified the position in the following words: "I find myself unable to accept counsel for plaintiffs
submission that a necessary ingredient of equitable estoppel is the promise should have led to alter his
position on the faith of the promise. I do not think so, for I consider it enough if the promisee acted on it, as
the defendant did in the present case. I think counsel for the plaintiff’s argument has overlooked the
difference between what I would call ordinary and promissory estoppel."
Sections 125 and 126 of the TEA are instances of estoppel by agreement. The sections deal with
the estoppel arising out of the position or contract entered by the drawing, acceptance or endorsement of a
bill of exchange or notes. The acceptance of a bill of exchange implies an admission of the existence of a
drawer and his capacity and authority to draw the bill. This also amounts to an undertaking by the acceptor
to pay the amount specified in the instrument.
Morris further clarifies that for a representation to operate as an estoppel it must also be clearly
one of fact not law187. In addition, at common law, where the conduct is negligent or consist wholly of
omission, there must be a duty to the person misled. This principle seems to be a bit different from the rest
of the law of estoppel. The explanation is t hat this aspect o f estoppel is properly to be considered a part of
the law relating to negligent misrepresentation, rather than estoppel properly so called. For further
elaboration on this we can read the cases of Mercantile Bank v. Central Bank 188 and Moorgate
Mercantile Co. Ltdv. Twitchings189
To wind up the above explanation, I can say that the doctrine of estoppel is very important in the
law of evidence for without it people would have faced problems for acting, in trust, on
actions/words/statements etc of other people. Students may note that the doctrine is wide and what has
been presented in this lecture is just a brief summary but not an exhaustive examination of the subject. It is
prudent that students take time to get into the details of the doctrine to facilitate understanding what it
entails.

33. When are statement made by persons who cannot be called as witness admissible in evidence?
The question is all about admissibility of the doctrine of hearsay evidence
REFERS TO QUESTION NO.18
34. (a) What is confession?
(b) Under what circumstance can a confession be admitted in evidence?

a) What is confession?
Confession on the other hand is defined as a direct acknowledgment of guilty made by the accused
in a criminal case.
In Pakala Narayana Swami vs. King Emperor a decision by the court make clear that Fitzjames
Stephen’s definition at any time by a person charged with a crime stating or suggesting the inference that

186
[1964J EA 6V&
187
see Tallock Singh v. Starling Insurance Co. Ltd [1963] EA 304
188
[1938] A.C287
189
[1977] A.C. 890 (H.L)

55
he committed that crime is an adequate. Since as Lord Atkins stated: “In their Lordship’s view no statement
that contain self exculpatory matter can amount to confession if the exculpatory statement is of some fact
which if true would negative, t he offences alleged to be confessed. Moreover a confession must admit in
terms the offence or at any rate substantially all the facts which constitute the offence…”
In the law of criminal evidence, a confession is a statement by a suspect in crime which is adverse to that person.
Some secondary authorities, such as Black's Law Dictionary, define a confession in more narrow terms, e.g. as "a
statement admitting or acknowledging all facts necessary for conviction of a crime," which would be distinct from a
mere admission of certain facts that, if true, would still not, by themselves, satisfy all the elements of the offense.
A confession is a direct and express oral or written form of admission of criminal conduct made by an
accused person admitting guilt. A confession under common law is found only in criminal cases. In United States v.
Barletta 190a party's own statements, whether inculpatory or exculpatory, are admissible as non hearsay pursuant to
Fed. Evid. R191. Also see United States v. Matlock 192

b) Under what circumstance can a confession be admitted in evidence?

A statement should be regarded as a confession only when it contains ingredients of the crime with which
the accused person is charged, so that the accused person could be properly convicted on his own plea as
discussed in the case of R v. Makrch193 “We think that the test is whether the statement is such that in the absence
of any explanation or qualification and in particular circumstances, it points clearly to the guilt of the maker. Thus,
statements “I killed him” or “I took the money” unaccompanied by any exculpatory statements and uttered in relation
to a person who has died of unnatural causes or missing funds as the case may be are in our view indicative of guilt
and therefore a confession.
under section 3 of TEA, (a) words or conduct, or a combination of both, from which, whether taken alone or in
conjunction with the other facts proved, an inference may reasonably be drawn that the person who said the words or
did the act(s) has committed an offence or (b)) a statement which admits that the person making the
statement has committed an offence (c) A statement containing an admission of all the ingredients of the
offence with which the maker is charged (d) A statement containing affirmative declaration in which
incriminating facts are admitted from which, when taken alone or in conjunction with the other facts proved,
an inference may reasonably be drawn that the person making the statement has committed an offence
The rule of confession is that a confession made to a police officer is admissible, provided the
prosecution proves that it was voluntarily made (S. 27). A police officer means any member of the police
force of or above the rank of corporal (s. 3). In the 1967 case of R v. Mwanda and others, the High Court
of Kenya held that the rank of the police officer is a ready measure of intelligence, and thus it was relevant
where confessions are concerned.
A confession of an offence other than the one with which the accused is charged is deemed to be
a confession for the purpose of that offence. E.g. A is accused of murder but he admits to manslaughter.
The confession to manslaughter will be admissible to prove manslaughter. It will however not be admissible
to prove murder.
In Bampamiyki s/o Buhile v. R194, the accused had been charged with murder, whereby a house
had been burnt down and two people died in the fire. The accused made a confession to a police officer

190
(1st Cir. 1981), 652 F. 2d 218, 219 --
191
801.(d)(2).
192
(1973), 415 U.S. 164, 17
193
(1971) HCD 74 (High Court of Tz)

194
(1957) EA 473

56
that he had burnt the house. The Court of Appeal held that the confession was inadmissible in the murder
charge.

35. Critically discuss the Res gestae Rule.

Res gestae is Latin word means "things done". It is a term found in substantive and procedural of
English law. An substantive law, it refers to the start-to-end period of a felony. In other word res gestae is
an exception to the rule against hearsay evidence based on the belief that, because certain statements are
made naturally, spontaneously, and without deliberation during the course of an event, they leave little
room for misunderstanding/misinterpretation upon hearing by someone else (i.e., by the witness, who will
later repeat the statement to the court) and thus the courts believe that such statements carry a high
degree of credibility.
In Tanzania’s law it is provided under section 8 of TEA which provides that facts which, though not in
issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether
they occurred at the same time and place or at different times and places.
To illustrate the above provision I can use these illustration that (a) the question is whether certain goods
ordered from Ben were delivered to Benjamin. The fact that the goods were delivered to several middle
persons successively are relevant facts. Each delivery to a middle person is a relevant fact, which may be
proved through evidence, although the fact in issue is whether the goods were delivered from Ben to Benji.
(b) The fact in issue is whether Patience murdered her boss Priscilla. The fact that shortly before the
murder Patience was seen by the neighbour running after Priscilla with a knife in hand is a relevant fact
which may be proved in evidence (e.g. foot prints). The fact in issue is not whether Patience ran after
Priscilla with a knife, but whether she killed Priscilla. The chase is only a relevant fact.
In R vs. Premji Kurji195, the deceased had been killed with a sword. Evidence at the trial was that
immediately prior to his death, the accused had assaulted the deceased’s brother with the sword and said
threatening things to the deceased. The accused was convicted and he appealed, one of the grounds of
appeal being that the evidence of the assault on the deceased’s brother should not have been admitted
under the principle of res gestae.
It was held that the evidence was properly admitted because: - (1) the two occurrences were so
closely interconnected that the wounding of deceased’s brother must be regarded as part of res gestae on
the trial of the accused on the murder of the deceased. (2) The fact that the accused had a sword and had
used it immediately before the killing must be admissible as strong evidence of the opportunity to commit
offence charged.
Although the facts which constitute the transaction may occur at different times, time is a crucial
factor. The incident claimed to be part of the res gestae must have occurred when the transaction is
ongoing, and not when it is complete.
In Ramadhan Ismail v. The Crown196, the accused was charged with rape. The victim was a
young girl, who rushed home in tears and informed her parents. She took her father to the house, found R
and pointed out and said that the man was the one that had raped her. It was held that these utterances
could not be considered as forming part of the res gestae because “when it comes to a matter concerning
res gestae, minutes are of the utmost importance.” This decision followed the decision in the case of R vs.
Bedingfield.

195
(1940) 7 EACA 58
196
(1950) 7 ZLR Page 36

57
 In R vs Bedingfield 197, where Bedingfield was charged with the murder of a woman. The lady,
who had been inside with Bedingfield, rushed out of the house, with her throat was slit open, and bleeding,
and exclaimed, “Oh dear Auntie, see what Bedingfield has done to me.” In the trial of Bedingfield for the
murder of the woman, it was held that although statements made while the act is being done are
admissible, the victim’s statement could not be received as evidence because “it was something stated by
her after it was all over and after the act was completed.”
In Ratten v. R198, Ratten was charged and convicted of murder of his wife by shooting her. His
defence was that his gun had accidentally gone off while cleaning it, and that she died because she was in
the bullet’s path. During the hearing, evidence was given that the shooting took place between 1.12 pm and
1.20 pm. Further evidence was given by a telephone operator to the effect that at about 1.15 pm, she
received a telephone call from Ratten’s house which was being made by a hysterical woman in fear saying
“Get me the police”. One issue at the trial was whether this evidence was admissible under the doctrine of
res gestae.
It was held that the evidence was admissible as part of res gestae because not only was there a close
association in place and time between the statement and the shooting, but also the way in which the
statement was made (hysterically) and the tone of voice used showed that the statement was being forced
from the wife by an overwhelming pressure of contemporary (current) events.
In R vs. Andrews199, the accused was convicted of manslaughter in a burglary and he appealed.
The House of Lords held that the victim’s statement had been properly admitted under res gestae because:
i) the primary question which the court must ask is, can the possibility of distortion be
disregarded?
ii) In order to answer the question, the court must consider the circumstances in which the
particular statement was made to ensure that the utterance was made purely in reaction to the
event thereby giving no opportunity for a reflection answer.
iii) In order for the statement to be sufficiently spontaneous, it must be so closely associated with
the events exciting it that it can be fairly be stated that the mind of the statement maker was
still dominated by the event.
iv) The court must be satisfied that all the circumstances of the case are such that there was no
possibility of any distortion to the advantage of the maker or to the disadvantage of the
accused.
Thus to sum up the above explanation one can agree with that to constitute the doctrine of res gestae rule
one should prove these circumstances namely continuity of action, common design, proximate of time and
interval of time.

197
(1879) 14 COX C.C Page 341
198
(1972) AC 378
199
1987 IAE Page 113

58
36. Bernard a married man is charged with assaulting Zawadi, his 10 years old child of a former
marriage.
(a) Under what conditions Zawadi may be allowed to give evidence?
(b) May the prosecution call as a witness, Benard’s present wife who was nearby when the
alleged assault took place?
(c) Assuming that Zawadi gave evidence on oath, and she was the only witness for the
prosecution in what circumstances can Bernard be convicted?

(a) Under what conditions may Zawadi be allowed to give evidence?

As a general rule, every person shall be competent to testify unless the court considers that he is
incapable of understanding the questions put to him or of giving rational answers to those questions by
reason of tender age, extreme old age, disease (whether of body or mind) or any other similar cause.
Section 127 (1) of the Evidence Act, hereinafter referred to as “The Evidence Act”, provides.
In this case the child in question (Zawadi) is 10 years old and by virtue of Section 127 (5) of The
Evidence Act this child is of tender age. The section provides: “for the purposes of subsections (2), (3) and
(4), the expression "child of tender age" means a child (whose apparent age is not more than fourteen
years”
The conditions under which a child of tender age may be allowed to give evidence may be
categorized into two: (a) When the child is capable of understanding the nature of an oath or affirmation
and (b) When the child is not capable of understanding the nature of an oath.
When the child is capable of understanding the nature of an oath or affirmation the law under
section 127 (2) of The Evidence Act the contrary implication is to the effect that a child of tender years may
be sworn, if he understands the nature of oath or affirmation. When a child of tender years appears as a
witness before the Court it is the duty of the Court to discover whether the child understand the nature of an
oath or affirmation. If he does understand, then he can be sworn or affirmed and the evidence he/she shall
give will be as good as that of an adult.
The case of Elias Joakim v Republic is relevant on this point. In the latter case Elias Joakim, the
appellant was charged and prosecuted before Shinyanga District Court of two counts - house breaking c/s
294 (1) and stealing c/s 267 of the Penal Code. The Court held among other things that: “(i) Competency in
giving evidence in so far as the child of tender years is concerned, is not a matter of age, but of
understanding; and (ii) where a child of tender years gives evidence sworn after a successful voire dire test,
and that he understands the nature of the oath, his evidence so given is as good as that of an adult”.
The investigation into whether the meaning of an oath is understood by the child was discussed in
the case of Kibangeny Arap Kolil v. R where it was held that the investigation “need not be a length one,
but it must be made and when made the trial judge must record it…the investigation should precede the
swearing and the evidence and an oath rather than to the question of his general intelligence.
When the child is not capable of understanding the nature of an oath or affirmation, According to
section 127 (2) of The Evidence Act, where in any criminal cause or matter a child of tender age called as a
witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be
received though not given upon oath or affirmation, if in the opinion of the court, which opinion shall be
recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his
evidence, and understands the duty of speaking the truth.

59
 From the above section it is clear that the unsworn evidence of a child of tender years may be
received under two conditions: (i) He possesses sufficient intelligence; and (ii) He understands the
duty of speaking the truth.
Normally the Court will conduct a voire dire examination to determine whether the child of tender
age possesses sufficient intelligence and that he understands the duty of speaking the truth. In voire dire
examination usually questions having no connection with the fact in issue are asked to the child the
essence being to test his/her general intelligence and understanding and capacity to respond to questions.
Is also a condition from section 127 (2) of the Evidence Act that the Court must give reasons to be
recorded in the proceedings as to why it was convinced that the child had sufficient intelligence and
understood the duty of speaking the truth.
In the case of Joseph v R the evidence of a child between 9-10 years was unsworn or unaffirmed.
The Magistrate recorded that he did not understand the meaning of an oath. The accused was convicted
and sentenced to one year imprisonment. On appeal the Court held that: “it is a condition of the reception
of such evidence that the trial Magistrate must not only be satisfied that the child understands the duty of
speaking the truth but that he must manifestly appear to be so satisfied because section 127 (2) requires
him to record such fact in the proceedings”.
The case of Dhahiri Aly v R. is also emphatic on the requirements that must be fulfilled before a
child of tender age who cannot understand the nature of an oath may be allowed to give evidence. It was
also argued for the appellant that the evidence of a child of tender years was wrongly received and ought to
have been discarded completely. The High Court held inter alia that: “it is clear from section 127(2) of the
Evidence Act, 1967 that if a child of tender years does not understand the nature of an oath, her evidence
may nevertheless be received without oath or affirmation (a) if she is possessed of sufficient intelligence
and (b) she understands the duty of speaking the truth. The trial magistrate must record that such
investigation has been made to establish whether the two conditions [(a) and (b)] have been satisfied”.
From the above discussion it is clear and manifest that if Zawadi is capable of understanding the
nature of an oath then she may be allowed to give evidence and such evidence shall be as good as that of
an adult. On the other hand if Zawadi does not understand the nature of an oath she may only be allowed
to give evidence after the Court would has satisfied itself that Zawadi possesses sufficient intelligence and
that she understands the duty of speaking the truth. Moreover the Court, for reasons to be recorded in the
proceedings, must indicate how it was convinced that Zawadi possesses sufficient intelligence and that she
understands the duty of telling the truth.

(b) May the prosecution call as a witness, Benard’s present who was nearby when the alleged
assault took place?
The general rule regarding the competence and compellability of spouses as witnesses against
each other is laid under section 130 (1) of The Evidence Act and it thus provides: “Where a person
charged with an offence is the husband or the wife of another person that other person shall be a
competent but not a compellable witness on behalf of the prosecution”.
The following cases try to demonstrate the general rule that spouses are competent but not
compellable witnesses for the prosecution. In the case of Kotia Mwamahusi v R, the appellant had two
wives and decided to get rid of one of them (he murdered her). At the trial one of the co-wives was
compelled to testify. On appeal the conviction was quashed as the co-wife was only competent but not a
compellable witness. However there were other ample evidence to convict the accused.

60
 In another case of Akechi v R. , the appellant was charged with arson. His wife was called to give
evidence for the prosecution. Before she gave evidence the trial Magistrate asked the appellant whether he
has any objection to his wife giving evidence against him. Appellant had none, the wife gave her testimony.
It was held that: “this was not in accordance with the provisions of section 130 (3) of the Evidence Act, that
subsection requires the Court to address no the appellant but his wife and to inform her that she was under
no obligation to testify against her husband but that she may give evidence against him if she choose to do
so”.
The Court in the above case was stressing that a spouse (in that case the wife) is a competent but
not a compellable witness for the prosecution.
Another illustrative case is that of Matei Joseph v R, the appellant was convicted of murder and
sentenced to death. At his trial, his wife was compelled to testify against him as a key prosecution witness.
He appealed against conviction and sentence. The Court of Appeal held: “the evidence of a spouse who
has been compelled to testify against another spouse in a criminal case contrary to the provisions of s 130
of the Evidence Act 1967, is inadmissible and of no effect”.
The above general rule is subject to some exceptions and the same are provided under Section
130 (2) (a) and (b) of The Evidence Act. 130 (2) any wife or husband, whether or not of a monogamous
marriage, shall be a competent and compellable witness for the prosecution–
(a) in any case where the person charged is charged with an offence under Chapter XV of the
Penal Code or under the Law of Marriage Act;
(b) in any case where the person charged is charged in respect of an act or omission
affecting the person or property of the wife or husband, or any of the wives of a
polygamous marriage of that person or the children of either or any of them.
From the given scenario, the victim of the assault was Benard’s 10 years old child. By virtue of
Section 130 (2) (b) of the Evidence Act if the victim of the act or omission is the child of either party then the
other spouse becomes competent and compellable witness for the prosecution. By the same token
Benard’s present wife who was there when the alleged assault took place is both competent and
compellable witness for the prosecution.

(c) Conditions under which Zawadi’s evidence given on oath and being the only witness for the
prosecution, can lead to Benard’s conviction.
Firstly, as a matter of law sworn evidence of a child of tender years does not need corroboration
by virtue of section 127 (2) of the Evidence Act. In practice the Court normally convicts a person after
warning itself of the danger of convicting a person on the basis of uncorroborated evidence of a child of
tender years. In the case of Shozi Andrew v R the appellant was convicted on wounding. The conviction
was based primarily on the evidence of a child of 13 years. The appellant's appeal against conviction and
sentence to the High Court was unsuccessful. He was given leave to appeal to the Court of Appeal. The
Court of Appeal held inter alia that: “In terms of section 127(2) of the Evidence Act, sworn testimony of a
child of tender years does not need corroboration. It can be treated as any other sworn testimony, and it
could form the basis of conviction”.
In the case of Joakim v R. (supra) the Court held inter alia that: “where a child of tender years,
gives evidence sworn after a successful voire dire test, and that he understands the nature of oath, his
evidence so given, is as good as that of an adult”. However some other Court decisions insist that evidence
of a child of tender years must be corroborated. To mention but an example is the case of Said Hemed v

61
R, in this case the Court of Appeal inter alia held that: “as matter of prudence, the evidence of a child of
tender years requires corroboration before it can be acted upon”.
From the above case law authority it is clear that sworn evidence of a child of tender years can
form the basis of conviction, hence if Zawadi gives sworn evidence and being the only witness for the
prosecution such evidence can form the basis for Benard’s conviction however the Court usually warns
itself of basing conviction on such evidence before it proceeds to convict the accused.
Secondly, in sexual offences as provided under Chapter XV of the Penal Code, evidence of a child
of tender years can be taken without need for corroboration. The Court needs only to satisfy itself that the
child of tender years is telling nothing but the truth. Section 127 (7) of the Evidence Act provides for this
position.
Considering the above position, Zawadi’s evidence given on oath can be taken and used as basis
for Benard’s conviction. From the above statutory and case law positions the observations are as follows;
First, Zawadi’s evidence given on oath can be the basis for Benard’s conviction though uncorroborated. As
a matter of law there is no hard and fast rule that such evidence must be corroborated but in practice the
Court usually warns itself of the danger of convicting the accused on the basis of uncorroborated sworn
evidence of a child of tender years.
Second. If the assault against Zawadi is a sexual assault falling under Chapter XV of the Penal
Code and Zawadi is the only witness for the prosecution, her evidence may be taken, though
uncorroborated, and form basis for Benard’s conviction. However before the Court can proceed to convict
Benard, for reasons to be recorded in the proceedings, must satisfy itself that Zawadi is telling nothing but
the truth.

37. Explain the admissibility of expert evidence

Expert witnesses must have specialized knowledge, skill, or experience in the area of their testimony.
For the most part, they do not testify concerning facts but draw inferences from them. With a few
exceptions, they are treated in law as ordinary witnesses and are brought before the court by the parties in
the same manner as other witnesses. Thus it is within this introduction I am going to explain the
admissibility of expert evidence especially in Tanzania’s law.

By definition, expert evidence or sometime called opinion evidence refers to evidence of what the
witness thinks, believes, or infers in regard to facts, as distinguished from personal knowledge of the facts
themselves.[1] In common law jurisdictions the general rule is that a witness is supposed to testify as to
what was observed and not to give an opinion on what was observed. However, there are two exceptions
to this rule: expert evidence and non-expert opinion given by laymen which people in their daily lives reach
without conscious ratiocination.

Although ordinary witnesses are generally allowed to testify only concerning facts and not to express
opinions, an exception to this rule is made for the expert, who must, of course, be allowed to give his
opinion. Generally speaking, anyone with special knowledge may be an expert in his respective field.

under section 47 of TEA provides that when a court has to form an opinion upon a point of foreign law, or of
science or art, or as to identity of handwriting or finger or other impressions, the opinion, upon that point of
persons (generally called experts) possessing special knowledge, skill, experience or training in such

62
foreign law, science or art or question as to identity of handwriting or finger or other impressions are
relevant facts.

The law also provides the provision for facts bearing upon opinions of experts. It is said that Facts, not
otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such
opinions are relevant.200

In the case of John s/o Ogutu v. R201 when the appellant was convicted of being in unlawful
possession of Moshi c/s 30 of the Moshi (Distillation and Manufacture) Act 1966 and sentenced to two
years imprisonment. Two prosecution witnesses testified that they had experience of such cases for years
and that the tin contained moshi because of the smell. The appellant admitted that “the tin contained
pombe’. The court was held that “The question of experience is for the court to find on the evidence
adduced. There is no evidence as to the nature and field of the experience from which the court could
make a finding of fact. If a witness relies on smell for his identification he must state the nature of the smell
and reasons why he came to the particular conclusion202” (2) Appeal allowed and conviction quashed.

Historically, the rule against opinion is an offshoot of the hearsay rule. The general rule is that
witnesses must state facts, not opinions and the rationale for the rule is that if they are allowed to give their
opinions on ultimate issues, there is a serious danger that the jury will be unduly influenced. However, Lord
Mansfield CJ in 1782 in Folkes v Chadd formulated an exception to the general rule when he stated: “On
certain matters, such as those of science or art, upon which the court itself cannot form an opinion, special
study, skill or experience being required for the purpose, “expert” witnesses may give evidence of their
opinion.”
In that case, the question arose whether a certain bank, created for the purpose of preventing the
sea overflowing certain meadows, contributed to the choking and decay of a certain harbour. The evidence
of one Mr. Smeaton, a chartered engineer, was allowed.
Lawton LJ in R v Turner , relying on Lord Mansfield's formulation, described the purposes for
which expert evidence could be deployed in the following terms: “Opinions from knowledgeable persons
about a man's personality and mental make-up play a part in many human judgments … An expert's
opinion is admissible to furnish the court with scientific information which is likely to be outside the
experience of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without
help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific
jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific
qualifications does not by that fact alone make his opinion on matters of human nature and behaviour
within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that
they may think it does.”
In that case, the accused unsuccessfully pleaded provocation in an answer to a charge of murder
and was not allowed to call a psychiatrist to testify that the deep relationship which subsisted with his
deceased girlfriend was likely to cause an explosive outburst of rage at her confession of infidelity.
However, in Lowery v R where Lowery and King were charged with a murder which must have been
committed by either or both of them, King was allowed to call a psychiatrist to swear that he was less likely
to have committed the crime than Lowery. The Privy Council held that the trial judge had acted properly.

200
Section 48 of TEA Cap 6 RE 2002
201
(1967) HCD NO
202
[Gatheru s/o Mjangwa v. R. (1954) E. A. C. A. p. 384 followed].

63
 According to Cross, one method of reconciling the two cases would be to treat the fact that Lowery
put his character in issue as the reason for allowing the psychiatrist evidence to impugn the credibility of his
testimony. Another method would be to treat Lowery as an aberrant case because in spite of the aberration
the formulation in Turner had been accepted by the courts and the textwriters. The latter method is
exemplified by the fact that opinions of experts are admissible on a variety of subjects such as handwriting ,
medical negligence , voice identification , ear print , DNA evidence and recovered memory (to mention a
few) provided they are not on ultimate issues. It is not clear whether lip reading is expert evidence but
opinions of experts on psychological profiles and psychological autopsies are inadmissible.
To sum up the above discussion one can say that it is generally accepted that a witness is only
permitted to speak of what he or she directly observes through the use of the five senses. The drawing of
inferences is the function of the court of fact. It is not the business of witness' to draw inferences or
express opinions; a witness' function is to state facts

38. How is the evidence of an accused person charge with stealing money that he bribed a co-
accused in order to run away from arrest proved in court?

The general rule is that an accused is not a competent witness for the prosecution in a criminal case.
However, there are several ways of rendering him competent and compellable where several people are
charged in an indictment viz. In this question I am going to show how is the evidence of an accused person
charge with stealing money that he bribed a co-accused in order to run away from arrest proved in the
court.

As for evidence adduced in-chief, the general principle is that a statement made in the absence of the
accused person by a co-accused cannot be evidence against the accused person. But if the co-accused
goes into the witness box and gives evidence in the course of a joint trial, then his sworn evidence
becomes evidence for all purposes including that of being evidence against the accused person. What the
accused says under cross-examination can be relied upon by the counsel responsible for the cross-
examination. An accused person is a competent but not a compellable witness for a co-accused who is
tried in the same proceedings.

In section 33 of Tanzania Evidence Act Cap 6 RE 2002 provides the provision on Confession which
may be taken into consideration against co-accused. It provides that (1) When two or more persons are
being tried jointly for the same offence or for different offences arising out of the same transaction, and a
confession of the offence or offences charged made by one of those persons affecting himself and some
other of those persons is proved, the court may take that confession into consideration against that other
person.

(2) Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on
a confession by a co-accused. (3) In this section, "offence" includes the abetment of, or attempt to commit,
the offence charged and any other offences which are minor and cognate to the offence charged which are
disclosed in the confession and admitted by the accused.
It should be noted that confessions of a co-accused cannot be the substantive piece of evidence; it
can only be used to confirm the conclusion drawn from other evidences in a criminal trial. In All Saleh
Msutu v.R203 shows repudiated Confession is one in which the accused avers that he never made it.
Whether a repudiated confession can support a conviction.
203
(1980) TLR 1

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 In R. v. Mabuku and Another204 The accuseds were charged with murder c/s 196 of the Penal
Code. The defence went further to submit that even if the statement could be taken into account against the
first accused it was improper to consider it against the second accused, being a confession of the co-
accused. The court was held that “I agree that the prosecution case is wholly based on the extra-judicial
statement of Faru to the Justice of the Peace. I also agree that Faru has in the trial within a trial retracted
the statement he made to the area secretary. The first question this court has to decide is therefore
whether the circumstances in this case are such as to entitle the court to act on the retracted confession of
the first accused. My perusal of decisions of the court of appeal on the question of retracted confessions
tells me
In the case of Pascal Kitigwa V R 205 the appellant, together with two others, were jointly charged
and convicted of robbery with violence by the Ilala District Court, and sentenced to thirty years
imprisonment and corporal punishment. His appeal to the High Court was unsuccessful. He appealed
further to the Court of Appeal complaining that it was unfair for the Trial Magistrate to proceed with the
hearing of the case after the defense advocate had left, without giving the applicant an opportunity to get
another advocate. He also argued that it was wrong for the trial court to convict on the evidence of a co-
accused. The Court of Appeal of Tanzania held as follows: (i) the second accused in the trial court was an
accomplice: a participant to the crime charged; (ii) evidence from a co-accused as in this case is
accomplice's evidence and a court may convict on accomplice's evidence without corroboration if it is
convinced that the evidence is true, and provided it warns itself of the dangers of convicting on
uncorroborated accomplice's evidence; (iii) although the law does not say that conviction on
uncorroborated accomplice's evidence is illegal, it is still unsafe, as a matter of practice, to uphold a
conviction cased on the uncorroborated evidence of a co-accused; and that (iv) corroborative evidence may
be circumstantial and may well come from the words or conduct of the accused and, in this case,- the
appellant independently corroborated the evidence of the co-accused.
In the case of R. v. Melanyi206 the accused was charged with murder. He made a confession to
killing the deceased at the time of arrest, which he later withdrew. The court was held inter alia that (1) “The
accused admitted killing the deceased. When the trial came he retracted his admission. It is trite law, and
authorities abound on this point, that n admission or confession which ha been retracted cannot support a
conviction unless it is corroborated by other evidence.
to sum up the above discussion I can say the evidence of co-accused as a matter of practice as
well as law must need be corroborated in order to be admissible in the court of law.

39. Explain situation under which evidence of character of an accused person is allowed in
Criminal Proceeding

The question is all about explanation on the situation under which evidence of character of an accused
person is allowed in criminal cases.
By definition Character evidence is a term used in the law of evidence to describe any testimony or
document submitted for the purpose of proving that a person acted in a particular way on a particular
occasion based on the character or disposition of that person.
according to section 57 of TEA the term "character" includes both reputation and disposition but,
except as provided in sections 54 and 56, evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or disposition were shown.
204
(1967) HCD NO 95
205
1994] TLR 65(CA)
206
(1971) HCD NO

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 In the case of Pino v. Koelber,207 the court says "When a person's character is an essential element in
the case, evidence of his character is always admissible because it is in issue. On the other hand, evidence
of one's character which is offered only as tending to prove the probability that he acted in a manner
consistent with that character on a particular occasion is generally inadmissible."
As general rule evidence of character under criminal law is provided under section 55 of TEA which
gives provision for good character in criminal cases. It provides that in criminal proceedings the fact that the
person accused is of good character is relevant.
In the case of R v Weir and Others support the above provision where the evidence of a co-
defendant’s previous conduct may be admissible under the common law if not evidence of bad character,
but if it is evidence of bad character, the provisions of this Act apply.
reading between the line, R v Hanson & Others the court said that “We have not heard full argument
as to whether it is right or indeed necessary to give acredibility direction where evidence of bad character
has been admitted under this Act, nor as to whether the nature of the direction should be dependent on the
gateway through which the evidence has been admitted. But, in this case, the defendant's credibility was
so inextricably bound up with whether he had committed the offences that no sustainable criticism can be
made of this aspect of the summing-up.”
In section 56 of the same Act provides that in criminal proceedings the fact that the accused person is
of bad character is irrelevant, unless evidence has been given that he has a good character in which case it
becomes relevant: provided that a previous conviction for any offence becomes relevant, after conviction in
the case under trial, for the purpose of affecting the sentence to be awarded by the court.
(2) Subsection (1) does not apply to cases in which the bad character of any person is itself a fact in
issue. (3) A previous conviction is relevant as evidence of bad character. (4) A person charged and called
as a witness in pursuance of subsection (4) of section 130 shall not be asked, and, if asked, shall not be
required to answer any question tending to show that he has committed or been convicted of, or been
charged with, any offence other than that with which he is then charged, or that he is of bad character,
unless–
(a) the proof that he has committed or been convicted of such other offence is admissible
evidence to show that he is guilty of the offence with which he is charged;
(b) he has personally or by his advocate asked questions of the witness for the prosecution with a
view to establishing his own good character, or has given evidence of his own good character,
or the nature or conduct of the defence is such as to involve imputations on the character of
the complainant or the witness for the prosecution; or
(c) he has given evidence against any other person charged with the same offence.

In the case of R. v. Petrol s/o Kakimala208, illustrated the point where accused was convicted of theft.
After the close of the evidence, but before judgment was entered, the court investigated accused’s
character. The magistrate called accused’s father, who said accused stole from time to time, and had been
in prison eight times. Accused denied this, but was not given a further opportunity for rebuttal or cross
examination. The father had sent his son away from home more than thirty years ago. The court was held
that (1) an accused’s character must not be put into evidence until after a judgment of conviction has been
entered. Such evidence is highly prejudicial and proves nothing as to the offence charged. (2) This was not
207
389 So. 2d 1191, 1193 (Fla. Dist. Ct. App. 1980), citing 1 S. Gard, Jones on Evidence §4:34
(6th ed. 1972) and McCormick on Evidence § 188 (2d ed. 1972):
208
(1967) HCD NO 127

66
so clear a case that the magistrate could not have been influenced by the character evidence. Conviction
quashed.
In the case of R v Hanson, Gilmore and Pickstone209:- the court has this to say “We would expect the
relevant circumstances of previous convictions generally to be capable of agreement, and that, subject to
the trial judge's ruling as to admissibility, they will be put before the jury by way of admission. Even where
the circumstances are genuinely in dispute, we would expect the minimum indisputable facts to be thus
admitted. It will be very rare indeed for it to be necessary for the judge to hear evidence before ruling on
admissibility under this Act.
In other case called R v Edwards, Fysh Duggan & Chohan 210 “the facts were not agreed
because no notice had been given and no adequate pre-trial enquiries had, in consequence, been made.
The defendant was cross-examined about the facts of one of these offences. Mr Lynn submits the
defendant was embarrassed in consequence, because the explanation which he had to give in relation to
one of the offences was that it did not involve entry into someone else's home, and the victim of the offence
was his girlfriend. Clearly, it is unfortunate that there was cross-examination in those circumstances.
As this Court has previously pointed out, (see Bovell & Dowds para 2) it is important that
provisions in relation to notice are observed so that adequate enquiries can be made on both sides as to
the circumstances of offences, in so far as those circumstances may be relevant when the question of the
admissibility of previous convictions arises.”
to wind up the above point one can say that the evidence of bad character in criminal case is not
admissible but who with good character is admissible before the court

40. “The development of the law of evidence in Tanzania is slow pace as to cause courts of law
being rendered futile”. Discuss the assertion in relation to the admissibility of electronic
evidence in Tanzania

In Tanzania, the role of ICT in day -to-day life is increasingly becoming more locally relevant and

appropriate to socio-economic requirements, cultural priorities, and value systems.11 A considerable

fraction of the Tanzanian public is educated in the use of Information and Communications
Technologies (ICTs) and is aware of the benefits available by accessing, sharing, and processing
knowledge via modern technologies.12 Tanzania has made remarkable progress in deploying ICT. This
progress has been well received by many service providers who are striving to address unmet
demand and competition in newly liberalized markets.13
My findings were that Tanzanian law (Evidence Act 1967) did not provide room for the
admissibility of computer/electronic evidence. The Evidence Act 1967 only accepted the best evidence, i.e.
the primary evidence in the form of written and signed or authenticated documents.
But things have changed since then. In the Trust Bank Ltd case, the issue before the court was
whether computer/electronic evidence was admissible in the courts of Tanzania. Nsekela J stated that in
the absence of electronic legislation, the court will always find way of dispensing justice even in difficult
circumstances of absence of legal guidance.
The rapid increase of employing IT in daily life in Tanzania has brought many challenges. The
Tanzanian courts for quite a long time have been relying on the Common Law doctrine of Best Evidence
209
[2005] EWCA Crim 824
210
[2005] EWCA Crim 1813: -

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Rule to which the primary evidence in most cases is the written and signed or authenticated documents.
However, the trend has changed recently. This paper therefore tries to give the highlight of Electronic
Evidence in Tanzania.
It was not until 2000 when the wisdom of the High Court of Tanzania was called upon to rule
whether electronic evidence is admissible as best evidence in the case of Trust Bank Ltd v. Le-Marsh
Enterprises Ltd., Joseph Mbui Magari, Lawrence Macharia. In this case the court ruled that the electronic
evidence is admissible in Tanzania courts and this was a departure from the strict rule of best evidence
rule.
In admitting electronic evidence the judge stated that the court should not be ignorant of modern
business methods and shut its eyes to the mysteries of the computer. This decision shows the judicial
activism and the role of judiciary in filling the gaps left by the legislature.
The Legislature on the other hand responded by enacting Electronic Evidence Amendment Act
2007 which provided a provision for the reception of electronic evidence in courts of law in Tanzania. The
new section has been added in the Tanzania Evidence Act 1967, the said section is section 40A.
This section provides, inter alia, that in any criminal proceedings, information retrieved from
computer systems, networks or servers; or records obtained through surveillance of means of preservation
of information including facsimile machines, electronic transmission and communication facilities; the audio
or video recording of acts or behaviours or conversation of persons charged, shall be admissible in
evidence.
Section 76 of the Tanzania Evidence Act was also amended to the effect that the bankers book
include the records kept or information system including but not limited to computers and storage devices ,
magnetic tapes, microfilm, video or computer display screen or any other form of mechanical or electronic
data retrieval mechanism.

Section 78 of Tanzania Evidence Act is also amended to include Section 78A a printed out records kept or
information system including but not limited to computers and storage devices, magnetic tapes, microfilm,
video or computer display screen or any other form of mechanical or electronic data retrieval mechanism
or other process which in itself ensures the accuracy of such print out, shall be received as evidence.
Section 78A(2) provides that the records received under section 78A(1) shall be deemed to be a
primary evidence and a “document” for the purpose of section 64(1) of the Tanzania Evidence Act. It is
worthwhile to note that the wording of section 40A indicates that the provision is limited to criminal
proceedings and not applicable in Civil suits proceedings.
In conclusion, it is suffice to say that Tanzania response to IT challenges is not only in
admissibility of electronic evidence but also have gone as far as enacting other IT related legislation and
the National ICT Policy of 2002 which indicates the vision of Tanzania government on ICT sector. Thus it
is not true that “The development of the law of evidence in Tanzania is slow pace as to cause courts of law
being rendered futile”.

41. When is plaintiff said to have discharged the burden of proof.

The burden of proof (Latin: onus probandi) is the imperative on a party in a trial to produce the
evidence that will shift the conclusion away from the default position to one's own position. The burden of
proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best

68
translation of which seems to be: "the necessity of proof always lies with the person who lays charges." in
this question I am going to discuss the shifting of burden of proof under evidence law.

This legal burden of proof is provided for in section 110(1) of the TEA in the following words: "Whoever
desires any court to give judgment as to any legal right or liability dependent on the existence of facts,
which he asserts, he must prove that those facts exist."

It should be noted that the legal burden of proof never shifts. In criminal cases it lies on the persecution
to show that the accused committed the specific offence beyond reasonable doubt. In civil matters it lies on
the party who could lose the case if no evidence at all were to be produced i.e. in order o win he must
establish his case by preponderance of probability 211. That is the reason why Section 111 of the TEA
provides: "The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all
were given on either side."

Others refer to it as the duty of "passing the judge." It is in this context that section 112 of the TEA
provides: "the burden of proof as to any particular fact lies on that person who wishes the court to believe
its existence, unless it is provided by any law that proof of that fact shall lie on any particular person." This
burden also relates to the duty of proving admissibility of certain specific evidence 212 as per the case of the
Commissioner of Customs v. Penachand,213

There are, however, three exceptions to these rules: first when a rebuttable presumption of law
exists in favour of a party the onus is on the other party to rebut it ; second when any fact is
expressly within the knowledge of any person, the burden of proving it is on him; and third in some
cases the burden of proof is cast by statute on particular parties (Sections 112 and 114 of TEA).

42. You have recently your studies at the law School and hence enrolled as an Advocate. Your first
client you are representing is facing a murder charge before the High Court. He confesses to
you that raped his victim before severing her private parts with a Sharp Knife, and later
slaughtered her. Can you reveal what your Client has told you to the court? Why?
The question is all about privilege on the Professional communication as provided under the Tanzania
Evidence Act of 1967 as amended time to time. Thus basing on this introduction I am going to discuss
whether an advocate can reveal before the court what the secret of his Client who has told an advocate he
killed a decease person. If yes why and if no why?

211
(See section 2 of the TEA.)
212
(s.l 13 of TEA)

213
[1961] EA 30.

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 The general rule is that there is no privilege with regard to confidential statements made between a
professional person and his client. However there is exception to this rule is legal professional privilege
which attaches to certain communications between lawyer and client, and to certain communications
relating to pending or contemplated litigation between lawyer and/or client and third parties.

The scope of this privilege has been set by case law but the Police and Criminal Evidence Act
1984 S.10 (relating to the limits upon Police powers to search for and seize evidence) has been described
as being an accurate reflection of the common law, i.e., (See R v Central Criminal Court ex parte
Francis and Francis)

a) communications between lawyer and client for the purposes of giving/receiving legal advice, and
b) Communications between lawyer/client and third parties where the dominant purpose is the
intended use in pending/ contemplated litigation.

The leading case on what the “dominant purpose” is Waugh v British Rail Board (BRB) where an
accident report prepared for BRB was claimed to be a privileged document at a civil trial brought by the
victim’s relatives. The dominant purpose of the document was held to be the investigation of the accident
and the making of recommendations by which to prevent a future accident. This meant that the document
was not privileged, whereas it would have been had the dominant purpose been the protection of BRB from
liability for negligence etc.

As with the privilege against self incrimination, the client (but only the client) may waive their right
to claim the privilege, and if the other party already has documentary evidence in their possession, they
may bypass the privilege, unless the claimant is successful in obtaining an injunction against them
preventing them from using that evidence.
The question why an advocate can not disclose the secret of his client, the answer is affirmative
Yes he can not disclose the secret of his client because the law prohibit him to keep secret as is provided
under section 134 of Tanzania Evident Act214 give provision for Professional communication. It is provides
that (1) No advocate shall at any time be permitted, unless with his client's express consent, to disclose any
communication made to him in the course and for the purpose of his employment as an advocate by or on
behalf of his client, or to state the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional employment, or to disclose any advice
given by him to his client the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure (a) an communication made in
furtherance of an illegal purpose; (b) any fact observed by an advocate in the course of his employment as
such, showing that criminal offence, has been committed since the commencement of his employment,
whether the attention of the advocate was or was not directed to that fact by or on behalf of his client; (c)
proceedings in which the professional conduct of the advocate himself is or might be in issue. (2)
The obligation provided for in this section continues after the employment has ceased. (3) For the purposes
of this section and of sections 135, 136, and 137, the words "advocate" and "professional legal adviser"
mean a person authorized by law or reasonably believed by the client to be authorized by law to practice
law in any country, the law of which recognizes a privilege against disclosure of confidential communication
between client and professional legal adviser or advocate.

214
section 134(1) of Tanzania Evidence Act Cap 6 RE 2002

70
 As with the privilege against self incrimination, the client (but only the client) may waive their right
to claim the privilege, and if the other party already has documentary evidence in their possession, they
may bypass the privilege, unless the claimant is successful in obtaining an injunction against them
preventing them from using that evidence.

This concept is of important in civil cases only, however, the phrase may be seen on letters from,
for example organizations that are being investigated for food complaints or accidents investigations etc.,
where the information contained in the letters could have a bearing on the outcome of civil proceedings
taken by, for example the aggrieved purchaser of the food, or the victim of the accident.

To sum up the above explanation one can say that the concept allows both parties to communicate
openly in the knowledge that should an agreement not be reached, and civil proceedings be initiated,
neither party can rely on the “without prejudice communications”, and a case has to be proved by other
means. The concept is therefore a convenient means of reaching a negotiated, informal, compromise.

Where officers are investigating criminal offences, the information gained from “without prejudice
communications” may be utilised in exactly the same way as any other evidence (subject only to tests of
relevance, and claims of privilege resulting in the successful application for an injunction preventing the use
of that material).

43. Kilonzo, Mapera and Simsim are jointly charged with raping Mercy. They are all arrested by
police inspector, Tambo. On arresting Kilonzo, Tambo tells him the following: “You had better
tell me what you did to Mercy and receive earthly judgement, instead of awaiting judgement on
the last day, when your judgement shall be eternal fire.” Kilonzo, fearing eternal fire, makes the
following statement: “I raped Mercy. It must have been the devil’s fault. I shall never do such a
thing again.”
On arresting Simsim, Tambo attempts to threaten him with eternal judgement, but Simsim refuses
confess. Furious, Tambo points his gun at Simsim and tells him the following: “if you do not tell
me what you did to Mercy, I shall send you to the next world right at this moment”. Scared, Simsim
makes the following statement: “I was there when Kilonzo and Mapera raped Mercy but I swear I did
not rape her. All I did was watch.”
Mapera does not know that Tambo is related to Mapera. On arresting Mapera, Tambo makes the
following statement to him: “Mercy is such a proud and arrogant girl that maybe she deserves what
you people did to her. Please tell me how it was with her. Was it as good as she looks?” The
unsuspecting Mapera gives the following reply “Oh yes it was really good. Kilonzo put some
sleeping pills into her drink at the club, and she was unconscious in no time. Tambo and I carried
her to the hotel room, where we all raped her in turn, until morning. I think she deserves what she
got since she behaves like she is made of gold.”
(a) Discuss the admissibility of the statements made by Kilonzo, Mapera and Simsim in relation
to their respective cases
(b) Can Kilonzo’s statement be used against Simsim and Mapera? Explain.
(c) Can Mapera’s statement be used against Simsim and Kilonzo? Explain.

SOLUTION

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This question is based on confession. It is covered under Chapter II, Part III of the Tanzania Evidence Act
Cap.6 R.E 2002 particularly sections 27- 33.
Confession is defined under section 3 (1) (a) of Tanzania Evidence Act Cap. 6 R.E 2002 to mean
a word or conduct or a combination of both words and conduct, from which, whether taken alone or in
conjunction with other facts proved, an inference may reasonably be drawn that the person who said the
words or did the act or acts constituting the conduct has committed an offence.
An admission made at any time by a person charged with a crime stating or suggesting the
inference that he committed that crime or is the statement which either admits in terms of the offence or at
any rate substantially all the facts which constitute the offence.
In the case of Queen Empress V. Babu Lal a confession as defined as admission made at any
time by a person charged with a crime stating or suggesting the inference that he committed that crime.
Also in the case of R v. Bampamiyki a statement should be regarded as confession only when it
contains ingredients of the crime with which the accused person is charged, so that the accused person
could be properly convicted or on his own plea.
With regard to the question posed in this scenario section 27 which is about admissibility of
confessions to police officers, section 29 which provides for confession caused by inducement or threat, or
promise when irrelevant in criminal proceeding, section 30 which provides to confession made after
removal of impression caused by inducement, threat or promise, section 31 which provides for relevancy of
information received from accused in police custody, and section 33 which provides for confession which
may be taken into consideration against co accused are the ones which will be the core of the discussion
when attempting the question given.
Any statement made to a police officer will be admissible provided the prosecution proves that it
was voluntarily made. This is proved under section 27 of the Tanzania Evidence Act Cap. 6 R.E. 2002. A
confession shall be held to have been voluntarily made if it was not induced by threat, promise or other
prejudice held out by the police officer to whom it was made, or any member of the police force, or any
other person in authority as proved under section 29 of the Tanzania Evidence Act Cap. 6 R.E. 2002.

(a) The statement made by Kilonzo is admissible because it relates to spiritual exholtation which
cannot vitiate a confession and it was made voluntary. In the case of R v. Wilde the accused
charged with murder being few days short of fourteen days was told by a man who was
present when he was taken up but not a constable and was told “now kneel down I am going to
ask you a very serious question and I hope you will tell me the truth in the presence of
Almighty” after which the accused made a confession. The confession was held not to have
been made under a threat because it was made under spiritual exholtation.

-The statement made by Mapera is admissible subject to section 32 of the Tanzania Evidence Act Cap.6
R.E 2002 which provides that “ if a confession refers to section 29 is otherwise relevant, it does not
become irrelevant merely because it was made under a promise of secrecy, or in consequence of a
deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or
because it was made in answer to questions which he need to have answered whatever may have been
the form of those questions, or because he was not warned that he was not bound such confession, and
that evidence of it might be given against him” . This section provides an exception to the rule of practice
that a caution has to be administered before a police officer question the accused. As it can be seen in the
scenario the fact that Tambo did not gave Mapera any caution about the consequences of his confession

72
was not a bar for that confession to be admissible. In the case Anyangu and others v. R , in this case four
appellants were convicted of murder in the High Court under section 21 of the Penal Code the judge
concluding that the killing was probable consequence of burglarious expedition in which the appellants
were engaged as members of an armed gang .the evidence against three of the appellants that they were
members of the gang consisted solely of the statements made by them to a police officer before being
charged. At the trial the admissibility of the statements was objected to on the ground s that they were
obtained in breach of the judge’s rule. The judge however admitted the statement and treated them as
accomplice evidence against each appellant. It was held,
i) That whether or not the judge’s rules were strictly observed the statement. The judge’s
rules are only rules of practice and it is always in the discretion of the trial judge to
allow statements made by accused persons although they are not obtained strictly in
accordance with the rules.
ii) The statement which does not amount to a confession is only evidence against the
maker of it.
iii) The statements were not confessions were only evidence against their makers
The statement made by Simsim in relation to his respective case is not admissible; this is because on
obtaining of that particular confession from Simsim, Tambo threaten to kill him by pointing his gun at
Simsim this act constituted threat that made Simsim to confess. Thus since this act is clearly against
section 29 of the Tanzania Evidence Act Cap.6 R.E 2002 which provide that “no confession which is
tendered in evidence shall be rejected on the ground that a promise or a threat as been held out to the
person confessing unless the court is of the opinion that the inducement was made in such circumstances
and was of such a nature as was likely to cause an untrue admission of guilty to be made”. The section
also displays important ingredients to be checked so as to discover if the confession was made under
threat. We are told the test of this is whether the accused displaced in such a situation or position that he
would rather give untrue rather than true statement. The cases of Njuguna S/o Kimani v. R and
Commissioner of Customs and Excise v. Harz can be referred.
In the case of Njuguna S/o Kimani v. R, EACA stated that “where an accused is promised pardon
or an inducement for a confession of guilt, the effect of the inducement is to make the freedom which will
accompany the false confession more attractive at the moment than to remain restrained if he were to
speak the truth”. And in the case of Commissioner of customs and Excise v. Harz, the company officials
made incriminating statements during the interrogation in the course investigating the failure by the
company to pay taxes made by customs officers lasting for 3 hours. Under the statute which empowered
the interrogation it was provided inter alia that failure to answer questions asked could lead to prosecution.
The Company officials maintained in the court that they only answered the questions because of this
provision. Harz was subsequently charged with consipiracy to cheat and defraud customs, and evidence of
the admissions made at the interrogation was tendered. It was held that the admission was inadmissible
because it was made under the threat of prosecution.
(b) Simsim’s statement cannot be used against Kilonzo and Mapera because of the following reasons;
first the confession was given under threat and if the confession is given under threat it cannot be
admissible as it will be contrary to section 29 of the Tanzania Evidence Act Cap.6 R.E 2002 which provide
that “no confession which is tendered in evidence shall be rejected on the ground that a promise or a threat
as been held out to the person confessing unless the court is of the opinion that the inducement was made
in such circumstances and was of such a nature as was likely to cause an untrue admission of guilt to be
made” . The second reason is that if one confess against the co- accused while the accused who is
confessing excluding himself that confession will not be used against his co–accused. Thus Simsim
confess after Tambo points his gun at him and he tries to exculpate himself from the offence charged as
he made the statement that “I was there when Kilonzo and Mapera raped Mercy but I swear I did not rape
her. All I did was watch”. As the general rule section 33(1) of the Tanzania Evidence Act Cap. 6 R.E 2002
73
which provided for that “when two or more persons are being tried jointly for the same offence or for
different offences arising out of the same transaction, and a confession of the offence or offences charged
made by one of those persons affecting himself and some other of those persons is proved, the court may
take that confession into consideration against that other person”. Generally the accused statement must
affect him and others and it would be considered to others, being the case the statement made by Simsim
can not be used against his co- accused. This fact was also observed in the case of R v. Kusanta Chaligaa
and Others , in this case Kusanta S/o Chaligaa Julian D/o Isimika and Chilewa S/o Msalali are jointly
charged and together on about the 11th day of January 1971 in Manyoni District Singida Region murdered
Jackson S/o Msalali. In this case the statement made by Juliana was self exculpate and therefore all the
weaker evidence in so far as Chilewa concern. The court held that the statement made by Juliana can not
be used against Chilewa and Chilewa was acquitted.
(c) Mapera’s statement can be used against Simsim and Kilonzo because if one confesses by
including his co- accused, the statement of the accused can be taken into consideration against his co-
accused. This is according to section 33(1) of the Tanzania Evidence Act 215 which provides that “when two
or more persons are being tried jointly for the same offence or for different offences arising out of the same
transaction, and a confession of the offence or offences charged made by one of those persons affecting
himself and some other of those persons is proved, the court may take that confession into consideration
against that other person”. Mapera’s statement explains how the whole process was and he stated that
“Kilonzo put some sleeping pills into her drink at the club, and she was unconscious in no time, Simsim and
Mapera himself carried Mercy to the hotel room, where they all raped her in turn until morning”, thus this
statement including all of them and it will be used against his co- accused. In the case of Queen- Empress
v. Nur Mohamed , A and B were tried together under section 239 of the Indian Penal Code on a charge of
delivery to another counterfeit coin, knowing the same to be counterfeit at the time they became possessed
of them. A confessed that he has got the coins from B and he had passed them to several persons at his
request. It was held that the confession of A was relevant against B.
(d) The action of Mapera to aver the statement attributed to him is falling under the concept of
Repudiated retracted confessions. When the confession is repudiated it means one argues that he never
made a confession and on retracted the accused argues that he made that statement but want to return it
back because he made it as a result of force or being induced.
In normal circumstances, when an accused raises this type of confessions usually the previous confession
does not get canceled but it puts the court on inquiry as to it’s value, it’s voluntary character and the
probability of it’s being true.
If during the hearing, Mapera avers that he never made the statement attributed to him, and further adds
that it is all a fabrication of the police inspector. As judges the stapes would us take to establish whether or
not the statement was made are;
(i) By seeking corroborative evidence to assist in determining which of the two stories told by the
accused is likely to be true. This is a matter of practice and not law and the court may therefore be satisfied
that a confession is true without requiring corroborative evidence as it was shown in the case of Tuwamoi v.
Uganda Duffs Ag. V.P. however questioned the validity of the basis of the distinction between these two
types of confession pointing out that the distinction before it had been accepted that corroboration was not
invariably necessary in the case of retracted confessions and that in view of the present rule regarding this
species of confession, it was difficult to accept that there is any real distinction in principle between a
repudiated and retracted confession. Both types of confession must be accepted with caution and
corroboration will usually be necessary, but the court may find that it is satisfied without corroboration that
the confession cannot but be true.
215
Cap.6 R.E 2002

74
(ii) Assessing the character of the confession and the circumstances under which it was made.
(iii) Holding a trial within a trial. The procedures of holding a trial within a trial were laid down in the
case of Ezekiel v. R as provided hereunder;
Where it happens that there is a doubt regarding a particular submission in either a legal or factual
issue it is upon the counsel for the accused to inform the court that a question of fact or law needs some
consideration but for this issue of Mapera it is upon the court to raise such an issue because Mapera is not
represented by an advocate.
At the moment this submission is made, the court should stop the proceedings and then ask the assessors,
if any to retire.

After that the prosecution will then be called to establish the case. And the defence will be availed the
opportunity to cross examine the prosecution witness.
The defense will then call its witnesses, and the prosecution availed the opportunity to cross examine them
too.
The whole trial within a trial will be centered on the admissibility of the confession in question. And lastly the
judge or magistrate should give the ruling on the issue in the absence of the assessors, if any. If the ruling
is in favour of the prosecution, then, before the confession is admitted, the whole trial within a trial should
be repeated for the benefit of the assessors if any. If the ruling is against the admission of the alleged
confession, then the matter is closed and it should never be raised during the course of the trial.
Therefore from the above explanations stated, if these procedures be followed the court can arrive at a
conclusion that the confession made by Mapera was true or not.

44. In Criminal Law, a husband or wife of an accused person is a competent but not a compellable
witness. Elucidate this, using Case Law.
The question is all about elucidate this statement that in criminal law, a husband or wife an accused
person is competent but not a compellable witness.
The competency of a spouse as a witness can be examined at two levels. First, when the husband
or wife, as the case may be, is an accused person. In such a case such a husband or wife who is accused
of an offence, is a competent witness for the defense i.e. in his/her case, but such person cannot be
compelled to give evidence. He is at liberty to do so. 216
Secondly, where the spouse is needed to give evidence either for the prosecution or the defense. For
the purpose of the prosecution case the general rule is that a spouse is a competent but not compellable
witness for the prosecution217. In other words such spouse is privileged. This privilege extends to all
spouses whether or not the marriage is monogamous. A problem may, however, arise where concubinage
is involved.
216
See section 231 and 293 of the CPA.

217
(Sect. 130 (1) of TEA

75
 The issue is whether concubine is covered by the privilege. This matter had a day in court in the case
of R v Siwajibu Kibaya218. In this case Mapigano J held that where the line between a valid marriage and
concubine is obscure and where cohabitation takes on the typical feature of a durable establishment a
spouse of such cohabitation is not under duty to testify for the prosecution.
The privilege stated in section 130(1) of the TEA has two exceptions. A husband or a wife is a
competent and compellable witness in the following cases:
(a) Where the charge is under chapter XV of the Penal Code or under the Law of Marriage Act,
and;
(b) In any case where the person charged is charged in respect of an act or omission affecting
the person or property of the wife or husband of such person or the children of either of
them.
The second exception was, clearly, intended to protect personal and property interests of spouses.
In situations where a spouse is needed to give evidence for the prosecution the court should make sure
that the particular spouse is dully informed that he/she is under no duty to testify against his/her partner
before giving such testimony, otherwise such evidence would not be admissible219.
The choice of a spouse whether or not to give evidence, being a competent but not compellable
witness for the prosecution, is not lost because he/she makes a statement with the police. The spouse
retains the right of refusal to testify up to the point when he/she takes an oath in the witness box after
having, voluntarily and with full knowledge of relevant rights, accepted to give evidence.
The other option is where a spouse is required to give evidence for the defense. In such a case
the husband or a wife of a person charged with an offence is a competent witness for the defense at any
stage of the proceedings, provided that he or she is called as a witness on the application of the accused
spouse220. It is interesting to note that the provision contains nothing concerning the compellability of a
spouse as a witness for the defense. In the circumstances it seems that a spouse cannot be compelled to
give evidence on behalf of the accused. However where, upon an application by the accused, a spouse
fails or refuses to give evidence the court and the prosecution may comment upon such failure or refusal to
give evidence for the other spouse221.

45. Mr. Horobesi was charged with armed robbery. It was alleged by the prosecution that Mr.
Horobesi committed this offence on the 1 st day of April. Mr. Horobesi on the material date when
the alleged offence was committed Mr. Horobesi was on his business trip in India. Suppose you
are a defence counsel, explain how you will introduce this piece of evidence in court.

The question is all about the defence of alibi. Alibi is a plea that when an alleged act took place the
accused was somewhere else. As indicated in part one of this series the defence of alibi is admissible
under section 13 of the TEA.
It should be noted that the amount of proof expected from an accused in this defence is to raise doubts.
That means where the accused pleads alibi the burden on the prosecution to prove the specific charge
does not shift. It remains on the prosecution. As far as the accused is concerned it is sufficient if he raises
doubts in the mind of the court that what he is saying might be true. The accused does not assume the duty
of proving his defence.
218
[1989] TLR 12
219
(sect. 130(3) of TEA)
220
(Sect. 130 (4) of TEA)
221
(sect. 130(5) of the TEA)

76
 It is the duty of the prosecution to show that the alibi is false. In the case of Solum v R222 the accused
was convicted of shop breaking and stealing. At the trial the accused denied having been at the scene of
crime but did not say where he had been. The trial magistrate, in his judgment, stated: "as the accused was
raising the defence of alibi, it is required of him to raise some evidence which could satisfy the court that his
alibi is reasonably true." On appeal to the High Court Georges C.J clearly stated:
"The accused does not have to establish that his alibi is true. All he has to do is
create doubts as to the strength of the case for the prosecution. It follows therefore
that where the evidence for the prosecution is itself thin, an alibi which is not in itself
particularly strong may very well serve the purpose of raising doubt as to the guilt of
the accused." In this case the conviction was quashed by the High Court. For more
clarification on the application of this defence vis-a-vis the prosecution's duty to prove
a case beyond reasonable doubt read also the case of Leonard Aniseth v.R.223.
Therefore the question at the hand base on the defence of alibi, where by a person says that at the time the
offence was committed he/she was not there at the place the offence was committed.

46. When is independent corroboration of testimony required either in law or practice?

REFERS ABOVE 26
47. X, who has stayed abroad most of time, entrusted his house to property agent Y and gave him
all the documents. He also wrote to Y, “I am at the moment not interested in the property, which
you can enjoy as best as you please”. On returning to Tanzania on permanent basis X filed a
suit for recovery of possession against the property agent. Can the defendant (property agent
pleased estoppels against X?

The question is all about the defence of doctrine of estoppels. Thus in the in the forthcoming discussion
I am going to determine whether the defendant can plead estoppels.
On the above fact the issue arise are
i) whether X transferred his ownership/property to Y
ii) whether the defendant can plead estoppels against X

In the first issue whether the statement said by X that I am at the moment not interested in the property,
which you can enjoy as best as you please to the transferred the ownership of his to Y. General If a person
own a property and want to change its ownership (eg if you’re transferring it into another person’s name, or
if you want to add your partner as a joint owner), he need to register this with the Land Registry.
In the law there is a procedure for dispotion of property the merely say that he at moment not have
interest in the property does not amount to transfer his property. The fact shows only the statement that “I
am at the moment not interested on the property and not transfer his ownership. Thus the property here
remains to X.
In the second issue, whether the defendant can plead estoppels against X, I can say that the
position of the law is clearly stated in section 123 that when one person has, by his declaration, act or
omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that

222
(1968) H.C.D. No. 142
223
[J963] EACA 206

77
belief, neither he nor his representative shall be allowed, in any suit or proceedings between himself and
that person or his representative, to deny the truth of that thing.
In law, estoppel is a set of doctrines in which a court prevents a litigant from taking an action the
litigant normally would have the right to take, in order to prevent an inequitable result. For example,
estoppel precludes "a person from denying or asserting anything to the contrary of that which has, in
contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by
his own deed, acts, or representations, either express or implied"224
Issue estoppel (more commonly known as issue preclusion) prevents, in some cases, an issue
that has already been litigated and decided on the merits from being re-litigated, even when the parties are
different. In the world of crime, some cases have achieved notoriety, e.g. in the Birmingham Six saga, the
House of Lords ruled in Hunter v Chief Constable of the West Midlands Police (1982) that issue
estoppel applied.
This case concerns the inherent power which any court of justice must possess to prevent misuse
of its procedure in a way which, although not inconsistent with the literal application of its procedural rules,
would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the
administration of justice into disrepute among right-thinking people225.
In fact according to section 123, there are three element (1) when one person has, by his declaration, act or
omission, (2) intentionally caused or permitted another person to believe a thing to be true and (3) to act
upon that belief,
Thus the fact does not fulfill these elements to a person to invoke the doctrine of estoppels, thus X
will recover his property.

48. Compare and contrast the ancient modes of trial with modern trial. In your discuss show which
one do you prefer and why

In this question I a going to compare and contrast between traditional and modern settlement of
dispute. Thus in the course of discussion I am going to identify the traditional and modern methods for
settlement of dispute before make comparison and distinction. Some of the methods used to settle dispute
were trial by moot courts, trail by oath, trial by odeal, trail by battle, trail witness and trial by jury.

The first is Trial by moot court. As opposed to the modern court the mot courts were not pre-
determined by rules of procedure to be followed. Due to lack of procedural rules, there was no
substantiation or verification of facts adduced in courts. Justice was based on various existences of things
eg. The fear of god, angels, floods etc.

The moot court had no need to weigh the testimony adduced as in the present case. They
determined many ethical customary norms, rules and moral issue in arriving at a particular conclusion. The
trial by moot courts survived till the emergence of feudalism and finally collapsed with the emergence of
capitalism

224
28 Am Jur 2d Estoppel and Waiver § 1
225
Pnnel's Case (1602) 5 Co Rep 117a

78
 Second tradition method is Trial by oath. This one presupposes a fore oath. A partly was tries by
oath alone without further proof in the early stage of trail. This was helped by the people known as oath
helper.

Third method is Trial by Odeal. This was crudest method of all the ancient trials. The trail was
mainly dominated by various tortures. Such would be extracted through fire, water, hot iron or through other
ordeals eg., one would be forced to carry a hot iron on his hand for a while after which the hand would be
scolded. Then the hand could be covered with a piece of cloth or grass for three days after which it will be
uncovered. The one who was still scoulded was guilty. Sometime medicine was administered to individuals
and for those who were effected by the medicine were held guilty.

It can be illustrated in the case of Rex v. Palamba s/o of Fundikira 14 E.A.C.A (Tanganyika
1947) where the trial by ordeal was used to discover who had by withcraft caused the death of the eleven
children of the first appellant in this case. So tradition medicine called MWAVI used by witches if a person
takes it and he has done something wrong he will die, whereas if a person takes it he or she has not done
anything wrong he or she does not die but only vomit

Fourth is Trial by battle. This was another irrational method of proof,. Under this method the disputants
took an afore oath and after which they take a dual challenges. If one of them was sick or weak he could
appoint one of his relatives to take a challenge. Whoever won the fights won the trial. They believed that
the one who was right was helped by god. This is sometime known as drumming the scandal, that is to say
both parties in dispute meet and competition or challenging and fight each other and at the end of fighting
the judgment provided to a winner as it was on the Torgindi of Mba Yar and Mtswen of MbaGish’s case.

Fifth method is Trial by Witnesses or By Jury. The party which ascertained the existence of
certain fact had to undnimoulsy supports his claim. There was no cross examination of witness or more.
Sometimes the party would be asked to bring five witness or more. If one of them gave a different story
from the rest then the party which called the witness was guilty or lost the trial.

Another is by Mediation is an informal dispute settlement process run by a trained third party,
called a mediator. Mediation is intended to bring two parties together to clear up misunderstandings, find
out concerns, and reach a resolution. In other words mediation is a settlement of a dispute or controversy
by setting up an independent person between two contending parties in order to aid them in the settlement
of their disagreement as Kadume’s case.

This is also illustrated in the case of Kapasyu s/o Mwaipinga v. Mwendilemo s/o Mwakyusa, 226
where The dispute between the two relatives involved a parcel of land, each claming it by inheritance. The
assessors in the district court suggested that as the parties are related the dispute could be brought to an
amicable solution by dividing the land equally between the two claimants. The court held that “It is clear that
any customary law which dispossesses an owner would be contrary to the principle of natural justice ….
The ‘Solomon’ ruling must be disturbed.” On the facts before the court, including an earlier litigation
involving the same plot of land, the disputed plot was awarded to Mwendilomo, the respondent.
Apart from that the modern way of settlement dispute are adversarial and inquisitorial procedure.
The adversarial system (or adversary system) is a legal system where two advocates represent their
parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to
determine the truth of the case. 227 As opposed to that, the inquisitorial system has a judge (or a group of
judges who work together) whose task is to investigate the case.
226
[1968] HCD NO 88

79
 The adversarial system is generally adopted in common law countries. An exception, for instance
in the U.S., may be made for minor violations, such as traffic offenses. On the continent of Europe among
some civil law systems (i.e. those deriving from Roman law or the Napoleonic Code), the inquisitorial
system may be used for some types of cases.

The adversarial system is the two-sided structure under which criminal trial courts operate that pits the
prosecution against the defense. Justice is done when the most effective adversary is able to convince the
judge or jury that his or her perspective on the case is the correct one.

An inquisitorial system is a legal system where the court or a part of the court is actively involved
in investigating the facts of the case, as opposed to an adversarial system where the role of the court is
primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are
used in some countries with civil legal systems as opposed to common law systems. Also countries using
common law, including the United States, may use an inquisitorial system for summary hearings in the
case of misdemeanors such as minor traffic violations.

The inquisitorial system applies to questions of criminal procedure as opposed to questions of

substantive law; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes
for which one can be prosecuted, nor the sentences that they carry. It is most readily used in some civil
legal systems. However, some jurists do not recognize this dichotomy and see procedure and substantive
legal relationships as being interconnected and part of a theory of justice as applied differently in various
legal cultures.

In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning
witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allow the judge
to act more like an inquisitor than an arbiter of justice.

The comparison between modern and traditional method of settlement of disputes is that
both deals with settlement with dispute in the society. Both used mediation as the way of settlement of
dispute. Not only that but also both modern and traditional way for settlement have two sides of parties to a
suit.

The main different between traditional and modern way of settlement of dispute is that in
traditional method the winner and loser both take half half, but in modern the winner takes all.

Another different is that the best way to administer justice is modern method rather than tradition
way of settlement dispute. As we see in above explanation the way of proving the fact is more inconsistent
some time can cause another offence as it occurred in fundikira’s case.

Basing on the above discussion one can say that both traditional and modern methods of
settlement dispute intends to make people live in peace and unit.

49. Discuss the principle enunciated in the case of John Makindi v. R (1961) E.A 327

227
Hale, Sandra Beatriz (July 2004). The Discourse of Court Interpreting: Discourse Practices
of the Law, the Witness and the Interpreter. John Benjamins. pp. p31.

80
 This case based on the principle provided under Tanzania Evidence Act Cp 6 RE 2002, shows the fact
which are cause or effect of a relevant fact or fact in issue. Section 9 of TEA gives the provision for facts
which are the occasion, cause or effect of facts in issue.
The law provides that facts which are the occasion, cause or effect, immediate or otherwise, of relevant
facts or facts in issue or which or constitute the state of things under which they happened, or which
afforded an opportunity for their occurrence or transactions, are relevant.
In this case the fact was that the appellant appealed from his conviction and sentence for the
manslaughter of a small boy whom he was Loco-Parentis by beating him so several that he died. The
defence fore-shadowed from statement made by the appellant to the police seemed to be that the
deceased was Epilepsy. When at trial the prosecution sought to lead evidence of previous severe beatings
of the deceased by the appellant in order to rebut the appellant defence. The judge admitted the evidence
of previous beatings.
On appeal it was considered whether this evidence should have been admitted. The court was held
that
(i) For admission of evidence of previous beatings by the appellant, it was not necessary for the trial
judge to wait to ascertain what defence would be by the appellant.
(ii) The evidence was admitted in explanation and substation of the cause of death and also showing a
motive in the Appellant for revenge on the deceased and Appellant ill will towards him. The fact that
evidence was admitted in anticipation did not cause any prejudice to the Appellant.
The case introduced the principle of motive which also covered under section 10 of TEA because the
accused threatened to beat a young boy in revenge, as the boy had previously caused him to be
imprisoned. “As you have made me imprisoned, I will beat you till you die.” that why the court held that the
evidence was admissible to explain and substantiate the cause of death of the boy.
50. Not everyone is allowed to give evidence before the court of law. Again, the given evidence is
not necessarily be accepted by the court. Under what circumstances the following people can
give evidence before the court of law and that the given becomes admissible
a) husband and wife in criminal case
b) Dumb witness
c) Person with unsound mind
d) Children of tender age

A person cannot give evidence in court unless he/she is competent to testify. In some situations a
competent person may be compelled to give evidence but in others this is not possible. Incompetent people
are not allowed to testify in court. In this lecture you will be introduced to the law on competency,
compellability and privilege of witnesses. It is within introduction I intend in this paper to discussion on
fourth concept given above as follows:
a) husband and wife in criminal law
The competency of a spouse as a witness can be examined at two levels. First, when the husband or
wife, as the case may be, is an accused person. In such a case such a husband or wife who is accused of
an offence, is a competent witness for the defense i.e. in his/her case, but such person cannot be
compelled to give evidence. He is at liberty to do so. 228

228
See section 231 and 293 of the CPA.

81
 Secondly, where the spouse is needed to give evidence either for the prosecution or the defense. For
the purpose of the prosecution case the general rule is that a spouse is a competent but not compellable
witness for the prosecution229. In other words such spouse is privileged. This privilege extends to all
spouses whether or not the marriage is monogamous. A problem may, however, arise where concubinage
is involved.
The issue is whether concubine is covered by the privilege. This matter had a day in court in the case
of R v Siwajibu Kibaya230. In this case Mapigano J held that where the line between a valid marriage and
concubine is obscure and where cohabitation takes on the typical feature of a durable establishment a
spouse of such cohabitation is not under duty to testify for the prosecution.
The privilege stated in section 130(1) of the TEA has two exceptions. A husband or a wife is a
competent and compellable witness in the following cases:
(a) Where the charge is under chapter XV of the Penal Code or under the Law of Marriage Act,
and;
(b) In any case where the person charged is charged in respect of an act or omission affecting
the person or property of the wife or husband of such person or the children of either of
them.
The second exception was, clearly, intended to protect personal and property interests of spouses.
In situations where a spouse is needed to give evidence for the prosecution the court should make sure
that the particular spouse is dully informed that he/she is under no duty to testify against his/her partner
before giving such testimony, otherwise such evidence would not be admissible231.
The choice of a spouse whether or not to give evidence, being a competent but not compellable
witness for the prosecution, is not lost because he/she makes a statement with the police. The spouse
retains the right of refusal to testify up to the point when he/she takes an oath in the witness box after
having, voluntarily and with full knowledge of relevant rights, accepted to give evidence.

b) Dumb Witness
It should be noted that a person is not necessarily incompetent to testify because he is dumb. A dumb
person may give evidence in any other manner in which he can make it intelligible such as by writing or
signs provided that such writing is recorded and the sign are made in the open court. Evidence given in this
way is deemed to be oral evidence232.
In such cases the court should satisfy itself that the witness has the requisite amount of intelligence
and that he understands the obligations of an oath. Section 128 of the TEA, however, does not mention
those witnesses who are both dumb and deaf.
This situation was discussed in the case of Salum V R233 where the general position in the case is that
such evidence may be admitted at the discretion of the court. In this case the court stated that a person
having both infirmities could testify if he can be made to understand the nature of an oath and if his
intelligence can be conveyed to and from him by means of signs If the court is satisfied that the witness is
fit to testify he may be sworn or affirmed and allowed to give evidence by means of an interpreter. What is
important, the court added, is the fact that the interpreter must be competent and sworn before assisting
the witness.

229
(Sect. 130 (1) of TEA
230
[1989] TLR 12
231
(sect. 130(3) of TEA)
232
(sect. 128(f) & ( 2 ) of the TEA)
233
(1951) 18 EACA 217

82
 Moreover there must be a record of the signs and not the interpretation of the signs. In the above case
the court excluded the evidence of a person having both infirmities because the method of interpretation
was found to be crude and unreliable.

c) Person with unsound mind

The term person with unsound mind applies to Idiocy and lunacy ; An idiot is a person who was born
irrational and a lunatic is a person who was born rational but subsequently became irrational. Under normal
circumstances an idiot can never become rational but a lunatic can entirely recover or have some lucid
moments.
According to the TEA a person of unsound mind is competent to testify unless prevented by his
condition from understanding the questions put to him and giving rational answers (Section 127(6) of TEA).
In summary a mentally disordered person or a lunatic is a competent witness if he (i) can understand
the questions put to him, and (ii) is capable of giving rational answer's to such questions. From the
foregoing one can say that in lucid moments a mentally disordered person or a lunatic may testify before a
court of law.
It follows logically, therefore, that such person must also be capable of understanding the nature and
obligations of an oath. This means that such a person can testify and it is upon the court to determine the
weight to be attached to such evidence. For example in the case of R v Hill 234a patient of a lunatic asylum,
who was laboring under a delusion that he had a number of spirits about him which were continually talking
to him. But with clear understanding of the obligation of an oath, was held competent to give evidence for
the crown on a charge of murder.

d) Child of tender years

The general rule is that a child is a competent witness unless the court considers that he is prevented
from understanding the questions put to him or from giving rational answers to those questions by reason
of tender age235. A child of tender years is a child of or below the apparent age of fourteen years 236. Where
in any criminal matter a child of tender age does not, in the opinion of the court understand the nature and
value of an oath, his evidence may be received though not on oath or affirmation, if in the opinion of the
court, to be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of
his evidence and understands the duty of speaking the truth 237. That means understanding the nature and
duties attached to an oath' is not a mandatory condition, although the same is desirable, before a child is
allowed to give evidence.
The minimum condition needed to allow a child to give evidence in court is possession of sufficient
intelligence and the understanding of the duty of speaking the truth. The 'term 'duty of speaking the truth
means the duty to tell the truth, which is an ordinary duty of normal social conduct.
The manner in which this provision is to be applied has clearly been laid down in the cases of Nyasai
Bichana v R 238and Kibangeny Arap Kolil v R 239. In case a child of tender years appears in court as a
witness the court has the duty to ascertain whether he understands the nature of an oath and the
obligations thereof. Where the court is satisfied that the child understands the nature of an oath it may
proceed to swear/affirm him for the purpose of giving testimony.
The ordinary procedure on this was laid down in the case of Kibangeny Arap Kalil v R cited above. In
this case the court, said that the court should ask questions to the child as to his age, religion, if any and
such other questions as will assist it in determining whether the child understands the nature of an oath or
affirmation and its obligations. Such examination of the intelligent of a child of tender age is called Voire
234
(1851) 2 Den. 254
235
(sect. 127 (1) of TEA)
236
(sect. 127 (5) of TEA)
237
(sect. 127(2) of TEA)
238
[1958] EA 190
239
[1959] EA 92

83
Dire examination. The examination 'need not be a lengthy one but it must be made and where it is done the
trial court must record the same.

The basic criterion in such situations is the capacity of the child to understand the questions and give
rational answers to what is asked. The court has the discretion to form its own opinion whether the child
witness has sufficient understanding to be qualified to be a witness. However in order to find this out voire
dire examination must be conducted: It is pertinent to emphasize that failure of the trial court to follow the
procedure prescribed might result in the quashing of the conviction in the case where the remaining
evidence is insufficient to sustain it. See Nyasai Bichana v R. cited above

If the court is satisfied that the child understands the nature of an oath it may proceed to swear or affirm
him for the purpose of giving evidence. It has to be made clear that the competence of a child of tender
years to give sworn evidence in either criminal or civil proceedings depends upon whether the child
understands the nature of an oath. As a matter of law such evidence need no corroboration. In the ease of
Shozi Andrew V R (1987)TLR 68 the court held that in terms of section 127(2) of the TEA sworn testimony
of a child of tender years does not need corroboration. The court added that such evidence can be treated
as any other sworn testimony and it can form the basis of a conviction. However, in practice, courts
normally do not convict on such evidence without a warning themselves on the dangers of convicting on the
basis of uncorroborated evidence of a child.
In Kibangenya's case (supra) the court stated as follows: "But even where the evidence of a child of
tender years is sworn (or affirmed) then although there is no necessity for its corroboration as a matter of
law. a court ought not to convict upon it. if uncorroborated, without warning itself and the assessors (if any)
of the danger of doing so." (P.95).
If the court makes a finding that the child possesses sufficient intelligence to warrant the reception of
his evidence it may proceed to take his evidence without any oath. As a general rule where un-sworn
evidence of a child is received corroboration is necessary.
However where the court is satisfied that the child is saying nothing but the truth It may proceed to
convict after warning itself of the dangers of doing SO (sect, 127(2) and (3) of the TEA), In sexual offences
evidence of a child of tender years may be acted upon if for reasons to be recorded, the court is satisfied
that the child is telling, nothing but the truth (sect,127 (7) of the TEA), Take note that in sexual offences the
court has no duty to worn itself as the case is in other offences .It needs only to satisfy itself, of the truth of
the evidence given, However it is required to record its reasons for such satisfaction

51. It is well understood that some of the people can be compelled to give evidence before the
court of law while others cannot. Write in-depth noted on the following
a) Compellability of witness
b) Privileges of Witness

(a)compellability of Witness

The term Compellability means that a witness is required by law to attend the court after being
summoned to give evidence and answer questions on any matter relevant to the facts of the suit or
proceeding.
In other words a witness is compellable if he or she may lawfully be required to give evidence. Most
witnesses who are competent can be compelled to give evidence. The only exception relates to spouses
and civil partners who are only compellable to give evidence against their partner in limited circumstances.
In civil as well as in criminal cases a witness may feel that if he answers a particular question or
questions he will incriminate himself or expose himself to a civil action, directly or indirectly. Such fear is not

84
a sufficient excuse for answering questions in a witness box. A compellable witness must answer relevant
questions whether or not the answers incriminates him/her or may directly or indirectly expose him to a
penalty or forfeiture of any kind but such answers which the witness is compelled to give shall not subject
him to any arrest or prosecution save for giving false evidence by such answer. This position is provided in
sect. 141 of the TEA.
To support the above point in the case of Ernest Joseph v R240 here the law differs from that in
England where a witness may refuse to answer a question on the ground that the answer may incriminate
him. The court was held inter alia that where a witness incriminates himself when giving evidence for the
prosecution he becomes immune by virtue of s. 141 of the Evidence Act, 1967 from being prosecuted on
the basis of the evidence he gives;
to sum up the above explanations one can say that A witness may be competent and yet not
compellable he may have the power of understanding the question and may be able to give rational
answers thereto, but may not be subject to the authority of the court; that is to say the court cannot compel
him to attend and depose before it.
a) Privilege of Witness
They are the persons, competent to depose but they are not compellable by the court. In general a
witness who is competent may be compellable. Again a witness is competent and also may be compellable
yet the law may not force him to answer certain questions. This is called restricted compellability or
privilege. The categories of such people include judges, magistrates, and police officers; advocates, and
public officers with knowledge of official communication have right to be protected from answering certain
question when they are being examined as witnesses, There are, however, certain situations where a
witness cannot be compelled to give answers to questions asked.
The position of Section 129 of toe TEA deals with privilege of judges and magistrates, it is against
public policy to allow disclosures of matters in which judges or magistrates have been judicially engaged.
The basis of this rule appears to be that cross-examination or comment on judicial conduct may be
incompatible with the prestige of office. Under this section a judge or magistrate cannot be compelled to
answer questions: (a) as to his own conduct in court as a judicial officer and, (b) as to anything that came to
his knowledge in court unless ordered by a superior court. This judicial privilege extends only to the court's
own conduct while in court, and anything which came into his knowledge while he/she was acting as a
magistrate, and this again in court.
It should be noted that the privilege does not extend to other collateral matters or incidents occurring in
his presence while acting as a judicial officer. In other words, if the matters about which the judge or
magistrate is to be examined, concern occurrences in his presence while acting as a judge or magistrate,
there is no privilege. For example where in the course of trial the accused assaults the prosecuting officer
the trial judge or magistrate may be examined on the incident.
In Tanzania’s laws under section 133 deals with privilege relating to information on the commission of
an offence. The provision protects judges, magistrates, police officers and revenue officers from disclosing
information as to where information relating to the commission of an offence was obtained. The rationale of
this rule is that the names of persons who assist in the detection of crimes through giving information
should not unnecessarily be disclosed. In normal circumstances if this practice is allowed no one would
volunteer to give information on commission of offences, it has to be understood that this privilege applies
only to the identity of the informant and not the contents of the information given.
While sections 134-137 of the TEA, deal with the law relating to professional communications between
clients their legal advisors and their clerks. Communications between a lawyer and his client made in
confidence for the purpose of a pending litigation or for the purpose of obtaining professional advice cannot
240
[1983] TLR 170

85
be disclosed without the client's consent. This applies whether the client or lawyer is a party to a litigation in
which the Question arises or a mere witness and It applies as much to the production of documents
containing such communications as to oral evidence about them. In the case of Minter v Priest [1930] AC
558 the court held that the communication must have been confidential and if not actually made in the
course of a relationship of lawyer and client it must at least have been made with a view to the
establishment of that relationship The rule is established for the protection of the clients not the lawyer. The
essence of the privilege is that the client may avoid disclosure of his instructions to his lawyer and of his
lawyer's advice to him. It is found in the impossibility of conducting legal business without professional
assistance and on necessity in order to render that assistance effectual and securing full and unreserved
intercourse between the two.
This privilege, however, does not cover a number of cases. First, it does not cover any communication
made in the furtherance of any illegal purpose. In the case of Crescent Farm (Sidcup) Sports Ltd v
Sterling Offices241 the first defendant conveyed land to the second defendant in breach of the plaintiffs
contractual right of pre-redemption. The plaintiff sought damages for breach of contract, interference with
contract and conspiracy and sought discovery of an opinion prepared by the first defendant's counsel
concerning the conveyance, which the first defendant had given to the second defendant's.
Second, it does not cover any fact observed by any advocate in the course of his employment as such,
showing that any crime or fraud has been committed since the commencement of his employment, whether
the attention of such advocate was or was not directed to such fact by or on behalf of his client.
In Butler v Board of Trade 242a solicitor sent her client a warning that his conduct, if persisted in, could
result in serious consequences. The court held that the letter was privileged because it could not be
regarded as being in preparation for or in furtherance or as part of any criminal design on the part of the
client. Third, proceedings in which the professional conduct of the advocate himself is or might be in issue.
This privilege extends to communications between a lawyer and the client, interpreters, clerks and
servants of the advocate (sect. 135 of the TEA). This matter was discussed in the case of Wheeler V Le
Merchant243. In this case the court said the following: "...the actual communication to the solicitor by the
client is of course protected, and it is equally protected whether it is made by the client in person or is made
by an agent on behalf of the client; and whether it is made to the solicitor in person or to a clerk or a
subordinate of the solicitor who acts in his place and under his direction... it is a rule established and
maintained solely for the purpose of enabling a man to obtain legal advice with safety..."
For more information on this read also the case of O 'Rourke v Darbishire244. Sections 134-136, as
aforesaid, prevent a legal advisor or his clerk or servant from disclosing professional communication made
in the course of professional employment. Section 137 elaborates further such protection by providing that
no one shall be compelled to disclose confidential communications which has taken place between himself
and his legal advisor unless he offers himself as a witness in which case he can be compelled to disclose
any such communication which the court thinks necessary' to explain the evidence which he /she has given
but no others. This privilege extends to all communications, oral or written, whether they were made before
or after the commencement of the litigation.
Finally, sections 138-140 of the TEA offer a measure of protection to witnesses who are not parties to
suits and other persons possessing documents. Sections 138-139 provides that a witness who is not a
party to a suit shall not be compelled to produce: (i) his title deeds or documents in the nature of title deeds,
241
Ltd [1972] Ch. 553
242
[1971] Ch. 680
243
(1881) 17 Ch. D. 675
244
[1920] AC 581

86
or (ii) any document the production of which might tend to incriminate him, unless he has agreed in writing
to produce them. These two sections relate to cases where the document is the title deed of the witness.
The reason for the rule is the protection from the mischief and inconveniences that might result from
compulsory disclosure of title. Section 139 refers to documents of another person in the possession of the
witness. The provision is intended to protect persons whose title deeds and other documents happen to be
in the possession of other persons such as attorneys, agents or servants, trustees, mortgages etc.

52. “ Leading questions are permissible in all stages of examination of witness before
the court of law” Discuss
The question is all about discussion on the statement that Leading questions are permissible in all
stages of examination of witness before the court of law”
By definition a leading question is a question that kind of prompts a person to answer in a certain way.
In other word a leading question is any question in which the asker gives hints to the answer, or "leads" the
answerer to a given answer.
Generally, leading questions are permitted in cross-examination (section-152 of TEA). The basis of this
rule is that normally a witness is biased in favor of the party who calls him. Leading questions asked by the
adverse party would, under normal circumstances, be a good instrument to get important facts of the case
from the witness, in cross-examination a great latitude of interrogation is permitted, when, from the temper
or conduct of the witness or from other circumstances, such course seem essential to the discovery of truth
and other important matters of the case.
In examination -in-chief the general rule is that a witness should not be asked leading questions,
except with the permission of the court (section 151(1) of the TEA). The question is: what is a leading
question. A leading question is one which itself suggests the answer, which the person putting the question
desires from the witness
Despite of this wide discretion there are a minimum rules that need to be observed while cross-
examining a witness:
(i) The court may forbid any questions or enquiries, which it regards as indecent or
scandalous unless they relate to facts in issue or to matters to be known in order to
determine whether or not the facts in issue exist (section 160 of the TEA)
(ii) the court may forbid any question which appears to it to be intended to insult or
annoy or which, though proper in itself, appears to the court to be needlessly
offensive inform (section 161 of the TEA).
(iii) No questions referred in section 158 of the TEA are permissible unless the person
asking has reasonable grounds for thinking that the imputation which it conveys is
well founded (section 159 of the TEA).
(iv) In the course of cross-examination, except as provided in the proviso to section 162, a witness
may be asked any question tending to impeach his character or credit, but unless such questions are
also relevant to the matters in issue, the witness's answers are conclusive and cannot be contradicted
by other evidence (section 162 of TEA).
The general rule is that all witnesses are liable to be cross-examined. However there are three main
exceptions to this:

87
 i) A person summoned to produce a document cannot be cross-examined unless and
until he is called as a witness (section 148 of the TEA)..
ii) A witness who is not examined-in-chief because he has been called by mistake as per the
case of Wood V Mackinson245.
iii) A witness giving replies in answer to questions by the court can only be cross-
examined with the leave of the court (section 176 of the TEA). Ordinarily leave of
the court to cross-examine is given if the evidence is adverse to either party as per
Coulson v Bisborough246.

Under section 176 of the TEA the court has power to put any question it pleases in any form. No
objections from the parties are allowed. The rationale for this is that the court has not only to see to it that
the proceedings are conducted according to law but also to administer justice and to find the truth. There is,
however, no right to cross-examine any witness upon any answer given in reply to any such question
except with the permission of the court. In cases tried with assessors, they may put questions to the
witness through or by leave of the judge which the judge himself might put and which he considers proper
(section 177 of TEA).
in re-examination as it discussed in the case of Scott V Sampson247 where the court said:" I think
that counsel has a right upon examination to ask all questions which may be proper to draw forth an
explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they
be in themselves doubtful but also of the motive by which the witness was induced to use these
expressions, but I think he has no right to go further, and to introduce a matter new in itself and not wanted
for the purpose of explaining either expressions on the motives of the witness."
To sum up the foregoing discussion one can say that there is no better way of getting information from
a witness other than asking him questions. The scope for asking questions is limited for the party calling a
witness in' that he will have to ask Questions only in regard to matters that are relevant to the case and no
leading question is allowed. However the opposite party has a wider room of maneuver in that there is
liberty of asking not only leading questions but also asking questions even on irrelevant matters. Where
there is good reason a witness may be re-examined-in-chief and re-cross-examined.

53. (a)How can the court of law test the credibility of witness (b) Gives a detailed on impeaching
the creditworthy of a witness.

a) How can the court of law test the credibility of witness

Competency should not be confused with credibility or reliability. When a person presents a witness he
expects the court to believe him and so decide the particular case or issue(s) in his/her favor. One of the
important things to a witness is his trustworthiness. In order to win the trust of the court a party is required
to present witnesses who are trustworthy. In practice the court will not normally trust witnesses without
checking their credibility. Thus basing on the above introduction I am going to explain how the court of law
can test the credibility of witness.

245
(1840) 2 Mood & R 273
246
|1894] 2 Q3 316
247
(1882) 8 QBD 491

88
 There are no hard and fast rules to determine the credibility of witnesses, the weight of their evidence
and the sufficiency of the same. In R v Madhub Chunder 248Birch, J., stated that: "For weighting evidence,
and drawing inferences from it, there can be no cannon. Each case presents its own peculiarities and in
each, common sense and shrewdness must be brought to bear upon the facts solicited."

Credibility of a witness depends on a number of factors namely: (i) knowledge of the facts, (ii)
disinterestedness and independence in relation to the issues in the case and the results, (iii) intelligence,
(iv) integrity and (v) veracity of the witness. The TEA provides for two main ways of testing the credibility of
a witness: a) by impeaching the credit of the witness, and; b) by observing his/her demeanor in court.

(b) Gives a detailed on impeaching the creditworthy of a wetness.

In order to know that a witness is credit worthy he/she is normally tested. As indicated above one
of such tests is impeaching the credit of the witness. Such credit may be impeached in four main ways:
i) By Cross-examination
One of the basic methods of impeaching the credit of a witness is by cross-examining him/her on
the following matters/areas: First, his/her knowledge of facts deposed to; opportunities of observation;
powers of memory and perception and disinterestedness in the subject matter. This procedure can be done
under the authority of section 147 of the TEA.
Cross-examination is an important tool of testing the truth of the witness's evidence. On this aspect
three matters can be examined: (i) the credibility of the witness; (ii) the faces to which he has deposed in
examination-in-chief including the cross-examiner's version of the subject, and (iii) facts to which the
witness has not deposed but to which the cross-examiner thinks the witness is able to depose. Cross-
examination is easily used to impeach the credit of the witness because it is not confined to facts narrated
by the witness in examination-in-chief. Leading questions may be put in cross-examination (section 152 of
TEA), In addition irrelevant Questions but tending to impeach the whiteness's credit are allowed in cross-
examination.
A party is normally not permitted to cross-examine his own witness with a view to discredit him..
However when the witness turns hostile, the party calling him may be permitted by the court to cross-
examine him (section 164 of TEA).
Second, a party may impeach the credit of a witness by inquiring on his/her character (section 149
of TEA). A party, with a view of impeaching the character of a witness may ask in cross-examination,
though he/she is not always compelled to answer (Section 158(1) of TEA), questions relating to his/her
character. For example, questions may be asked with regard to alleged crimes or other improper conduct.
Alternatively, a party may bring evidence, of an independent witness, on the character of the witness in
question (section 149 of the TEA). A witness of character may be cross-examined and re-examined. Under
normal circumstances, however, it is not usual, except under special circumstances, to cross-examine
witnesses simply called to testify on the character of a party.
Third, a witness may be impeached by testing his veracity, inquiring on his/her position in life and
injuring his/her character by incriminating questions (sections 141,155 and 156 of the TEA). Section 155 is
the central provision on matters related to testing the veracity and credit of a witness. This section goes
beyond the strict limitations in section 147 of TEA on order or direction of examinations because it allows
the questioning of witnesses to determine their trustworthiness.
248
(1874) 21 W.R. cr. 13,19 (India)

89
 Under this section a witness may be cross examined not only on the facts of the case but also on
irrelevant matters with a view to impugn his credibility and shake his whole testimony. Under section 155(1)
question may be asked in cross-examination to test the witnesses truthfulness/veracity. Cross-examination
to credit is directed to discredit the witness with a view to showing that this/her evidence for or against the
relevant issue is untrustworthy.
As a general rule whenever it is intended to impeach the witnesses' credit his/her attention must
first be called to the discrediting facts so that he may have an opportunity of explaining them. If the
questions relate to a matter relevant to the suit or proceedings the provisions of section 141 of the TEA
regarding the compellability of witnesses applies, if they are irrelevant to the facts in issue exception so far
as they affect the credit of the witness the court has the discretion of deciding whether or not the witness is
compelled to answer and may warn him/her that he/she is not obliged to answer the same (section 158(1)
of the TEA).
As a matter of principle questions permissible under section 158 ought not to be asked unless the
person asking them has reasonable ground for thinking that the imputation is well founded (section 159 of
TEA). Other questions that may be disallowed by the court are those which are indecent or scandalous
even though they have some bearing on the questions before the court, unless they relate to the facts in
issue or matters necessary to be known in order to determine whether or not the facts in issue existed
(section 160 TEA). It has to be noted that questions that appear to be intended to insult or annoy or which,
though proper, appear to the court to be needlessly offensive can be forbidden by the court (section 161 of
the TEA). This is important for the reason that the primary goal of the court is not to expose the character of
the witness but to get credible and balanced evidence for a fair determination of the case.
ii) Discrediting a Witness Using Independent Evidence
By discrediting the witness using independent evidence i.e. by evidence of persons who testify that
they, from their knowledge of the witness, believe to be unworthy of credit (section 164(1) (a) of the TEA) or
by proof that the witness has received a bribe or an offer of a bribe to give evidence (section 164 (1) (b) of
the TEA).
The discussion on this aspect is confined to subsections 1(a) and (b) of section 164. Under the
section the credit of a witness may be impeached, by the adverse party, or, with the consent of the court,
by the party calling him in two main ways. First, by presenting evidence showing that the witness bears the
general reputation for untruthfulness (section 164(1) (a) of the TEA), In the case of May V Brown 249Lord'
Bayley J., said: "When the credit of a witness is objected to, general evidence that he is not believed on
oath is admissible, but specific evidence that at some period he had committed a particular crime is not
admissible."
In such circumstances the witness may be asked three things: (i) whether he has Knowledge of
the impugned witness's general reputation for veracity;(ii) whether the impugned witness is to be believed;
(iii) whether his opinion as to the impugned witness's credibility be based simply on the latter's general
reputation for veracity or on his personal knowledge as per R V Longman250 for farther elaboration.
The second method of impeaching credit is by proof of misconduct connected with the
proceedings e.g. that a witness has been bribed or has received any other corrupt inducement (section 164
(1) (b) of the TEA). (iii) Confronting the Witness with Previous Conflicting Statements By confronting the
witness with his/her previous conflicting statement written (section 154) or oral (164 (1) (c).

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(1824) 3 B&C 126
250
[1968] 2 ALL E R 761

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 to sum up the above point one can agree with me that the above explanation is all about a)How
can the court of law test the credibility of witness (b) Gives a detailed on impeaching the creditworthy of a
witness

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