ISLAMIC UNIVERSITY IN UGANDA

KAMPALA CAMPUS

COURSE: LAW

YEAR: 3

SEMESTER: II

COURSE UNIT: LAW OF EVIDENCE II

GROUP:

LECTURER: NANJALA FARIDA

Question: In intense argument by year 3 law student of IUIU, kapaaro stated that “law on

proving a fact before court is very clear that it is always the person who asserts to always prove

existence of certain facts and that such burden never shifts.” Discuss the veracity of the above

statement.

NAME REG NO SIGN

MUWONGE SUDAIS ABDALLAH 222-053012-24031

OGWAL ISAAC 222-053012-23633

RACKARA CELESTINE 222-053011-23241

MUKISA ASYNCRITUS 222-053011-24212

NABIRYE JOSEPHINE 222-053012-23654

scope. For this reason, there are certain rules which have been prescribed to help in the

establishment of the liability of parties. The general rule is that facts must be proved unless they

are admitted.

Therefore, the law of evidence prescribes how facts may be proved, who must prove the facts

and the procedures of proving those facts. The sum of these three attributes is called the Burden

of proof.

The burden of proof is a fundamental principle in law that determines which party in a legal

dispute is responsible for providing evidence to support their claims. The burden of proof

denotes a number of things;

 The obligation to prove certain facts which is called the evidential burden or

provisional burden, which means a duty to adduce evidence at a certain stage of the

proceedings. (This constantly shifts)

 It could also mean the duty to prove a case which is referred to as the legal burden. This

is the duty to establish a case against the other party. (This does not shift)

The rule is that whoever desires any court to give any judgment as to any legal right or liability

dependant on the existence of facts which he asserts, must prove that those facts exist and when

one is bound to prove the existence of any fact, it is said that the burden of proof lies on that

person.1

This follows the common law principle that whoever asserts must prove, but he who denies

needn’t prove. However, the burden of proof will depend on the nature of the case. For instance,

1
Evidence act cap 8, Sections 101 (1) & (2)
in civil cases, a person who asserts is usually the plaintiff and he is therefore one who is expected

to prove, while in criminal cases, this burden is on the prosecution.

It should also be noted that the burden of proof in a suit or proceeding lies on that person who

would fail if no evidence at all were given on either side.2

If the prosecution has made out a prima facie case and the accused does not say anything, the

prosecutor will therefore have a burden to prove otherwise.

Burden of proof in criminal cases

The 1995 constitution of the republic Uganda provides for presumption innocence of an accused

person not until they have pleaded guilty.3 This article lays a legal burden on the prosecution to

prove the case against the accused.

In Woolmington v DPP, in this case, a man was charged with murder of his wife. In his defense,

he pleaded that it was accident. The trial court held that once the prosecution had proved an

unlawful killing then it was the duty of the defense to prove circumstances which would reduce

the killing to an accidental one. On appeal, the conviction was quashed. The House of Lord

stated that the accused was wrongly convicted for failing to proof that the killing was innocent.

In addition, those in criminal cases, it is always the duty of prosecution to prove a case against an

accused beyond reasonable doubt. And where a man raises the defense of accident, he casts

doubts on the prosecution, therefore the prosecution has a duty to clear that doubt.4

The standard of proof in criminal cases is beyond reasonable doubt. Beyond a reasonable

doubt means that the evidence presented by the prosecution must be so convincing that there is

2
Ibid, section 102
3
Article 28(30)(a)
4
[1935] UKHL 1
no reasonable doubt in the mind of a reasonable person that the defendant is guilty of the crime

charged. In a criminal trial, the prosecution bears the burden of proving the defendant's

guilt beyond a reasonable doubt.

In Miller v Minister of pension, Lord Demning explained that proof beyond reasonable doubt

does not mean proof beyond shadow of doubt. (a very small amount of uncertainty)5

Burden of proof in civil cases

The evidence act provides that whoever desires any court to give judgment as to any legal right

or liability dependent on the existence of facts which he or she asserts must prove that those facts

exist, and when a person is bound to prove the existence of any fact, it is said that the burden of

proof lies on that person.6

In Administrator General suing through Karoli Mwebe and Anor v Kitata Abdullah & 11

others, the plaintiffs filed this case against the defendants for land Block 22 plot 375. The

defendants never filed a defense and so a default judgment was entered. The suit was set down

for hearing exparte. The witness filed witness statements that were not sworn before a

commissioner of oaths. Court held while dismissing the case that it is the law that even when a

suit proceed exparte, the plaintiff still has the burden to prove his case to the required standard.

The witness statements were not sworn before a commissioner of oaths as directed by court and

therefore court could not treat them as credible evidence that this was an outright abuse of the

court process.7

5
[1947] 2 ALLER 372
6
Section 101 (1) & (2)
7
(1979) HCB 39,
The standard of proof in civil cases the general standard is on the balance of probabilities or

the preponderance of doubt/ evidence, that is to say the party who bears the burden simply has to

show that his case is more probable than not, that is to say if it is more likely to be more correct

than the other person’s case.

However, When a person is accused of any offence, the burden of proving the existence of

circumstances bringing the case within any exception or exemption from, or qualification to, the

operation of the law creating the offence with which he or she is charged and the burden of

proving any fact especially within the knowledge of that person is upon him or her, however a

burden will be burden shall be deemed to be discharged if the court is satisfied by evidence given

by the prosecution, whether in cross examination or otherwise, that those circumstances or facts

exist and the person accused shall be entitled to be acquitted of the offence with which he or she

is charged if the court is satisfied that the evidence given by either the prosecution or the defence

creates a reasonable doubt as to the guilt of the accused person in respect of that offence.8 In

Balikowa vs Uganda, it was held that no matter what the charge, the principle that the

prosecution must prove the guilt of the accused is part of Uganda’s criminal law. Any attempt

except for a few exceptions at common law, such where the accused person pleads insanity or

intoxication, the burden of proof is on the prosecution to prove all elements of the offence

charged.9

Thus the exceptions to the general rule include;

Insanity

8
Evidence act, section 105
9
Criminal appeal No.033/2011
A person is not criminally responsible for an act or omission if at the time of doing the act or

making the omission he or she is through any disease affecting his or her mind incapable of

understanding what he or she is doing or of knowing that he or she ought not to do the act or

make the omission; but a person may be criminally responsible for an act or omission, although

his or her mind is affected by disease, if that disease does not in fact produce upon his or her

mind one or other of the effects mentioned in this section in reference to that act or omission. 10

Therefore, where an accused person raises the defense of insanity, the burden of proof shifts to

him or her. However, the standard of proof is on a balance of probabilities and not beyond

reasonable doubt. In R V Kachinga, the appellant had killed his mother by two blows of an axe

and a hoe. He admitted the crime but raised a defense of insanity. And argued that the appellant

was not aware of what he was doing as he expressed regret of killing her and he did not

remember doing so. Two doctors gave expert evidence where one stated that the appellant had a

mental condition that could lead him to such act, the other found that the appellant was normal

but just weak minded. The assessors also found that the man was insane. The trial magistrate

rejected the evidence and stated that the accused had not satisfactorily dispensed his burden of

proof of the defense of insanity. On appeal, it was held that the appellant had discharged his

burden since it is not that the standard of proof is that high like the magistrate had ruled that it

was enough for the appellant to have discharged his burden by evidence given.11

Intoxication

Where an accused person raises a defence of intoxication, the burden of proof shifts to him or

her. Where a person charged at the time of the act or omission complained of did not know that

the act or omission was wrong of did not know what he or she was doing and show that the state
10
Penal code act, Section 11
11
(1943) 13 EACA
of intoxication was caused without his or her consent by the malicious act of another person or

the person charged was by reason of intoxication insane.12

In the case of Chemingwa v R, The accused was convicted for murder. The defence gave

evidence that the accused had been intoxicated by a friend who denied the allegation. The trial

magistrate had concluded that since the accused had failed to prove his defence of intoxication,

he was liable. The accused appealed and it was held that if the accused seeks to set up the

defence of insanity by reason of intoxication, the evidential burden of proof rests upon him to at

least demonstrate the probability of what he seeks to prove, but if the plea is merely that by

means of intoxication, he was incapable of forming the specific intention required to constitute

the offence charged, it is an error for the trail court to rest the onus on the accused.13

Defence of alibi

This is where the accused claims that he/she was elsewhere when the alleged crime took place.

The defence of Alibi also requires an accused to adduce evidence to prove his Alibi. In the case

Kanyolo Patrick v Uganda, A group of persons was were charged with aggravated robbery and

murder. The trial court based in identification evidence of the owner of the home that was being

robbed and his wife. One of the accused in his testimony claimed he had left off to another

village in company of the 3 members of the gang, one of the member’s body whom A1 claimed

had left with them was discovered on the site after the robbery. Court held that since the

identification evidence was admissible and corroborated by the presence of one of the gang’s

body, the defence of alibi failed.14

12
Ibid, Section 12(2)(a)
13
(1956) 23 EACA 192
14
(1990 93) iv KALR 53
In Uganda vs Mugabe jamil sam, the accused was charged with murder and at trial he raised

the defence of alibi and he called two witnesses. The court held that the accused person who

raises a defence of alibi assumes no duty to prove it and the burden remains on the prosecution to

dispose it by adducing cogent evidence and put the accused at the scene of crime.15

Diminished Responsibility

The question of burden of proof when the defence is that the accused acted under diminished

responsibility is provided for under Section 194(1) & (2) of the Penal Code Act. On a charge of

murder, it is for the defence to prove that the accused was suffering from such abnormality of

mind as to bring within the scope of such defence.

In Uganda v Owora Phillip. The brief facts of the case were that the accused was charged with

murder and he raised the defence of diminished responsibility. The Court held that in murder, for

the accused to avail him of this defence, the defence or the accused must plead & prove it.

Further that the burden placed upon the defence to prove this defence is on the balance of

probabilities.16

Statutory exceptions

15
HCT-11-CR-CSC 129/2011
16
Cr Ss No 67/2004
There are statutes which put the burden of proof upon the accused to adduce cogent evidence.

For example; anyone who kills an animal in the wild must prove that they did so in self

defence.17

Any person found in possession of minerals must prove that he or she has license or permitted by

any authority.18

Also an accused who in relation to registration of motor vehicle, trailer or plant knowingly has in

his possession a registration plate without lawful authority or excuse commits an offence or

fraudulently uses, lends or permits to be used in the registration plate commits an offense and is

liable to imprisonment or fine .also it’s upon the driver to prove that he has the driving license

authorizing him to drive because this fact is within his special knowledge.19

Facts especially within the knowledge of the accused

Proving any fact especially within the knowledge of the accused is upon him or her.20In Ismail vs

R, the accused was convicted of being in possession of firearms and ammunitions without the

requisite certificate. Possession was proved and admitted but no evidence was on either side

concerning the certificate. The court held that possession of firearms license was a matter which

fell within the knowledge of the appellant21

Lawful entry immigration

17
wildlife act cap 200, Section 59
18
mining act cap 148 Section 68(5)
19
traffic and road safety act cap 361, Section 7
20
Supra, fn 8
21
(1995)22 EACA 461
In immigration cases, the burden of proving that the entry is lawful is on the accused. In Devraj

Vs R, it was held that the onus of proving the existence of circumstances bringing a case within

any exception or exemption. It was for the accused to prove that he was entitled to remain in the

protectorate after expiry of his temporary pass.

The concept of a prima facie case

In Bhatt Vs R, court defined a prima facie case as one which a reasonable tribunal properly

directing its mind to law and evidence adduced by the prosecution could convict the accused if

no explanation is given in defence.

In conclusion, the burden of proof is a critical element in legal proceedings, determining which

party must establish the facts at issue. Typically, it lies with the claimant or prosecution,

requiring them to meet specific standards of proof. Exceptions exist, such as when a defendant

raises an affirmative defense, shifting some evidential responsibility

References

Constitution of Uganda 1995

Statutes
Evidence act cap 8

Penal code act

Wildlife Act Cap 200

Mining Act Cap 148

Traffic and Road Safety Act Cap 361

Case law

Woolmington v DPP……………………………………………………………….@ page 3

Miller v Minister of pension………………………………………………………..@page 4

Administrator General suing through Karoli Mwebe and Anor v Kitata Abdullah & 11
others……………………………………………….………………………………@page 4

R V Kachinga……………………………………………………………………….@page 6

Chemingwa v R,…………………………………………………………………….@page 7

Kanyolo Patrick v Uganda,………………………………………………………….@page 7

Uganda vs Mugabe jamil sam,……………………………………………………….@page8

Uganda v Owora Phillip,………………….………………………………………….@page8

Ismail vs R…………………………………………………………………………….@page9