S.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.
Phipsonon 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)
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)
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)
Summary of the definition:
· 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.
2. Historical Background
The Tanzanian Evidence Act, together with the evidence Acts in the other two East African countries, Kenya and Uganda, are based on the Indian Evidence Act of 1872, which in turn is based on the English common law of Evidence. There are however a few differences between the English Common Law of Evidence and the Indian Act, as well as the Indian Act and the East African countries’ Acts. This discussion however focuses on the TEA.
Ø In 1897, the East African Order in Council and the Zanzibar Order in Council were promulgated (announced officially), and they provided that the High Court in those countries should exercise jurisdiction in conformity with certain Indian enactments, one of which was the Indian Evidence Act
Ø In 1907, the East African Protectorate Applied Acts Ordinance was passed, providing that any amendments or substitution to the Indian enactments applicable in the Protectorate should only apply to the Protectorate of they were passed before the passing of the East African Protectorate Applied Acts Ordinance
Ø In 1917, a Zanzibar Evidence Decree was enacted, replacing the Indian Evidence Act
Ø In 1920, the Tanganyika Indian Acts (Application) Ordinance was passed, which applied the Indian Evidence Act as it stood at that date to the territory.
Ø In 1967, the Tanganyika Evidence Act no. 6 of 1967 was enacted, replacing the application of the Indian Evidence Act in Tanganyika. (Note: In Zanzibar they still use the Evidence Decree.
Ø The 1967 TEA applies to all judicial proceedings before the Magistrate’s Courts and High Courts in Tanganyika, but does not apply to Primary Courts or to affidavits presented to any court or officer of the court, or to proceedings before an arbitrator.
3. Terminology and Definitions
i. Commonly used terms
v Tender/ adduce/introduce evidence: to put evidence before the court. The Party who tenders evidence may also be referred to as the proponent of the evidence. Note that this may be any party; prosecution or accused; plaintiff or defendant.
v The party who is adverse to the proponent of the evidence is known as the opponent. Again this may be any party.
v When a court permits a party to put evidence before it, the court is said to “admit” or “receive” the evidence. From this we have the terms admissible or inadmissible, admitted, not admitted
v FACT: S. 3 of the TEA defines a fact to include: (a) any thing, state of things, or relation of thins, capable of being perceived by the senses and (b) any mental condition of which any person is conscious.
Black’s law dictionary defines a fact as follows “(a) something that actually exists: an aspect of reality. Facts include not just tangible things, actual occurrences and relationships, but also states of mind such as intentions and opinions; (b) an actual or alleged event or circumstance as opposed to its legal effect, consequence, or interpretation.
Facts which a party in a case is permitted to prove are (a) facts in issue (b) relevant facts and (c) facts forming part of the res gestae [rays jestee/ jesti]
Fact in Issue
Also refereed to as material fact S. 3 of the TEA defines this as “any fact from which, either by itself, or in connection with other facts, the existence, non-existence, nature or extent of any right, liability of disability, asserted or denied in any suit or proceeding, necessarily follows” . In simple words, it is the fact that one party alleges and the other party controverts. It is a fact that is significant or essential to the issue at hand. A fact in issue is determined by:
(a) Pleadings: a party must plead a fact in issue and ask for relief.
(b) Substantive law: this is the law that determines rights and obligations
Relevant facts
This 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) [1931] 134, 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.
Facts forming part of the res gestae
Res gestae: latin for “things done/things transacted”. These are fats surrounding an event. Will be discussed in detail later.
ii. Substantive Definitions
Evidence may substantively fall into the following categories
a. Direct versus Circumstantial 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. 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.
b. Direct/Percipient versus hearsay Evidence
Percipient means perceiving, and while direct is also an appropriate word, the word percipient more appropriately describes the opposite of hearsay evidence.
Percipient evidence is evidence of facts which a witness personally perceives using any of her senses, while hearsay evidence is used when a witness recounts a statement made (orally, in a document or otherwise) by another person, and the proponent of the evidence asserts that what the person who made the statement said was true. In other words, it is hearsay if the statement is being repeated in order to prove the truth of its contents. -Hearsay evidence is inadmissible except when it falls under exceptions recognized by the law.
c. Primary versus Secondary Evidence
These categories relate to proving of the contents of a document. Primary evidence relates to the production of the original document or an admission (by opponent) of its contents. Secondary evidence consists of a copy of the document, however made, or oral evidence about what its contents are/were. (discussed later in detail)
d. Presumptive/Prima Facie (prima fashee) versus Conclusive Evidence
Presumptive or prima facieevidence is evidence which is declared, usually by statute, to be sufficient evidence of a fact, unless and until an opponent adduces evidence to the contrary, in which case the court will weigh all the evidence tendered before arriving at a conclusion. E.g. if a child is born during the continuance of a marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, a presumption that the child is the legitimate son/daughter of the man arises. Conclusive evidence is evidence which no party is permitted to contradict. It is tantamount to a rule of law. E.g. a child under the age of 10 is incapable of committing an offence (see s. 15 of the penal code)
iii. Definition as to Form
Evidence is normally received by the court in the following forms:
a. Oral Evidence
Also testimonial evidence. S.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.
b. Documentary Evidence
S.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.
c. Real Evidence
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.
Relevance and admissibility ss. 7 - 18
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”
Key points:
Admissible evidence must be
Ø Relevant
Ø Must NOT be excluded by any of the rules of evidence
Ø It therefore follows that certain evidence may be logically relevant, but may be excluded from admissibility by a certain provision of the Act. For instance, hearsay
Relevancy is defined in S.3 of the Act in the following manner: “One fact is said to be relevant to another when 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”. S. 7 of the Act further provides that “subject to the provisions of any other law, evidence may be given in any suit or proceeding of the existence or non- existence of every fact in issue, and of such other facts as are hereinafter declared to be relevant and of no others.
Key points:
Ø Evidence of facts in issue: so long as the fact in issue is clearly laid out in the pleadings, any evidence on the existence of the same is admissible. This is the kind of evidence known as direct evidence
Ø Evidence of relevant facts, also known as circumstantial evidence, can only be admitted if falls under one or more of the categories specified by the TEA. These categories are covered by ss. 8-18
Ø However as we shall see later on, relevancy is determined by human logic/common sense and experience. The Act provides broad categories, the specifics of which have to be determined on a case to case basis.
Categories of Relevant Facts ss. 8 –18
1. Facts falling under the doctrine of Res Gestae:
Ø These are facts forming part of the same transaction/facts surrounding an event. Sometimes, facts are so connected to the fact in issue that they form part and parcel of the same transaction. E.g. A beats his son B over a period of 2 years. After the last beating, B dies, not just because of the last beating, but because of the problems caused by the accumulative beatings. Fact in issue: Did A’s beating of B cause B’s death? The fact that A had beaten B over a period of time is so connected to the fact in issue; it forms part of the same transaction.
Ø S.8 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 place.
Ø Ss. 9 – 11, further specify facts that form part of the same transactions as hereunder:
o S.9 Facts which are the occasion (reason of), cause or effect of facts in issue
o S.10 Facts relating to motive, preparation, and previous or subsequent conduct
o S. 11 Facts necessary to explain or introduce facts in issue or relevant facts
See the need for Logic/common sense and experience?
See how the above sections relate to the same transaction?
2. Similar facts Evidence
Ø S. 16: Facts showing existence of state of mind or of body or of bodily feeling
Ø S.17: Facts bearing on question whether act was intentional or accidental
3. S.12 Things said or done by conspirator in reference to common design
4. S. 13 When facts not otherwise Relevant are relevant
5. S. 14: Facts tending to enable the court determine damages
6. S. 15 Facts affecting the existence of a right or custom
7. S. 18 Relevancy of existence of course of business
