Introduction
Relevancy is the test of admissibility, but relevancy is inevitably used in a restricted legal and not in a logical sense. Facts may be logically relevant and yet may not be deemed to be relevant for the purpose of the Evidence Act and evidence of them is highly inadmissible e.g. in a case where A is charged for the murder of B by stabbing, the fact that a witness C was told by D (who does not give evidence in the case) that he (D) saw A stab B is logically highly relevant but unless certain circumstances detailed in the Evidence Act exist, this fact is legally irrelevant and evidence of it is inadmissible.
All facts to be admissible they must be relevant, but not all relevant facts are admissible. Facts are admissible if they are relevant to a fact in issue or are relevant facts. A fact is relevant if it is connected with another fact(s) or fact in issue. This connection is only relevant as provided by the Evidence Act and not other way. Therefore relevant means admissible and is admissible if it is relevant with fact in issue. Section 7 deals with the right to produce evidence in any suit relating to the existence or non-existence of every fact in issue, and also to prove such other facts which may be declared relevant under the provisions of the Evidence Act.
E.g. A is tried for the murder of B by beating him with a club with the intention of causing death.
At A’s trial the following facts are in issue:
- A’s beating B with the club;
- A’s causing B’s death by such beating;
- A’s intention to cause B’s death.
This section excludes everything not covered by some other succeeding sections. The words “and of another” preclude a party from providing any fact not in issue or not declared relevant by any of the remaining sections of this chapter. To establish the relevancy of any fact, it must be shown that it is a fact in issue or fact such as is declared to be relevant. Relevancy is explained in sections 8-13. These sections are widely designed in such a way that they overlap each other. Thus a motive for the fact in issue (s. 10) is part of its cause (s.9), subsequent conduct influenced by it (s.10 is part of its effect (s.9). Facts relevant under section 13 would in most cases be relevant under other sections.
Facts Forming Part of the Same Transaction (Res Gestae)
Section 8 deals with relevancy of facts forming part of the same transaction. Facts though not in issue, if they are connected with a fact in issue as to form part of the same transaction are relevant whether these facts occurred at the same time and place or at different times and places.
E.g.
A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-stander at the beating, or so shortly before or after it as to part of the transaction is relevant fact.
A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts though they do not contain the libel itself. The question is, whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.
Section 8 admits those facts the admissibility of which comes under the technical expression res gestae (i.e. the things done, including words spoken in the course of a transaction) but such facts must form part of the same transaction.
Transaction is defined as a group of facts so connected together as to be referred to by a single name as a crime, a wrong or any other subject of enquiry which may be in issue. The things done and the words spoken are group that form fact in the form of the same transaction when we talk about res gestae. These things from physical acts and the words accompanying such physical acts. These acts might have been spoken by the person doing the act or to whom they were done or to any other person.
In the case of R. v. Bendingfield (1879) 14 Cox 341, on a charge for murder, it appeared the deceased, with her throat cut came suddenly out of a room in which she left the defendant who also had his throat cut and was speechless and that she said something immediately after coming out of her room and a few minutes before she died, her statement was rejected by the court as not being part of the re gestate on the ground that it was not uttered at the time the act was being done but after the act was completed. In the case of Premji Kurji v. R (1940) E.A.C.A. 58 the appellant appealed from a conviction of murder. The deceased had been killed with a dagger. Evidence was admitted of the fact that just prior to the death of the deceased, the appellant had assaulted the deceased’s brother with a dagger and had uttered threats against the deceased (words spoken by appellant: “I have finished you and I am going to show your brother”). The court held that: The evidence of the attack on the deceased’s brother was admissible in the circumstances as part of the re gestae.
Though acts which constitute the transaction may occur at different times, yet time is a crucial factor (contemporaneous). If the incident which is claimed as part of the re gestae occurred after the transaction is completed it cannot be part of it. In Ramadhani Ismail v. The Crown (1945) 7 Z.L.R.36, a young child having been raped went crying straight to her home, only two or three houses away, had some conversation with her parents and then led her father to the house where she had been assaulted. On arrival at the accused’s house she said “That is the Bwana”. It was held that this utterance could not be considered part of the re gestae; “When it comes to a matter of re gestae minutes are a matter of the utmost importance.”
For the declaration accompanying acts to be part of the res gestae must be:
- The declaration must be substantially contemporaneous with the act i.e. made either during or immediately before or after its occurrence, but not at such an interval to allow fabrication or to reduce them to mere narrative of past events.
- The fact itself must be in issue or relevant and the declarations can only be used to explain the fact they accompany, and not prior or subsequent disconnected fact.
The declarations are not proof of the facts they accompany this must be established independently. And though admissible to explain or corroborate they are not in general evidence of the truth of the matters stated i.e. they are original evidence not exception to the hearsay.
Facts Causing or Caused by Other Facts
Section 9 admits a very large class of facts, connected with facts in issue or relevant facts, though not forming part of the transaction. This section deals with facts which are the occasion or cause of a fact (ii) as being it fact (iii) as giving opportunity for its occurrence (iv) as constituting the state of things under which it happened e.g. facts relevant as giving occasion or opportunity The question is whether A robbed B. The fact that shortly before the robbery, B went to a fair with money in his possession and that he showed it or mentioned the fact he had it to third person is relevant.
The fact constituting an effect
The question is whether A murdered B. Marks on the ground produced by a struggle at or near the place murder was committed are relevant facts.
Facts constituting the state of things under which alleged fact happened
The question is whether A poisoned B. The state of B’s health before the symptoms ascribed to poison, and habit of B known to A which afforded an opportunity for the administration of poison are relevant fact.
The general rule is that facts not otherwise relevant do not become relevant merely because of their close similarity to the facts in the case being tried. Evidence of the fact that the accused has on previous occasion committed a similar crime is inadmissible as showing that he has a propensity to commit crimes of this sort and therefore more likely to have committed the crime for which he is now being tried. In the case of Making & Wife v. A. G. for New South Wales (1894) 17 Cox c.c. 704, the court said the following;
“It undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his conduct or character to have committed the offence for which he is being tried”.
However, there are circumstances under which the commission of similar crimes on previous occasions will be relevant in particular. In the case of R. Smith (1915) Cr. App. R. 229, the accused was charged for the murder of A. Evidence as to the death of B and C on dates subsequent similar to those attending the death of A was held to have been rightly allowed in order to show that the death of A was not accidental but designed. In another case of R. James Brabin & Ram Pratap Khosla (1949) E.A.C.A. 80, the appellants were convicted of corrupt practices contrary to section 383 of the Kenya Penal
Code. The particulars of the offence were that, they, being persons employed by the Commodity Board, obtained a sum of money from one Hasham Kara for forbearing to show disfavour to him in relation to the affairs of the Commodity Board. At the trial evidence was admitted under section 7 Indian Evidence Act (s. 9 Tanzania Evidence Act) of previous corrupt transaction by the appellants with Hasham Kara. The court held; That as the evidence of the previous corrupt transaction also concerned Hasham Kara such evidence was admissible. For it showed the “state of things” under previous similar offence and the offence charged.
The court further said that;
“If for instance the “state of things” were that the person charged with demanding the bribe were total strangers to the person from they demanded it, that would be a different “state of things” from the position as alleged to be here, namely that the parties demanding the bribes were on such terms with Hasham Kara that on a previous occasion only five months earlier bribe had been demanded and successfully extracted.”
In John Makindi v. R. [1961] E.A. 327 the accused was convicted of the manslaughter of a boy by beating. Evidence of previous beating was upheld on appeal to be admissible under section 7. (S.9 TEA)
Facts Relating to Motive, Preparation and Conduct Section 10 mainly deals with three aspects:
- A fact which shows or constitute a motive for any fact in issue or relevant fact.
- The acts constituting preparation for any fact in issue or relevant fact
- The conduct of a person either previous or subsequent to the offence.
E.g.
Motive: A is tried for the murder of B, the fact that A murdered C that B knew A murdered C and that B had tried to extort money from A by threatening to make his knowledge public are relevant.
Preparation: A is tried for the murder of B by poison. The fact that before the death of B, A procured poison similar to that which was admitted to B is relevant.
Conduct: A is accused of a crime, the fact that either before or at the time of or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, r that he destroyed or concealed evidence or prevented the presence or procured the absence of person who might have been witnesses or suborned persons to give false evidence respecting it, are relevant.
Statements affecting the conduct of the accused: The question is whether A robbed B. the fact that after B was robbed, C said in A’s presence “the police are coming to look for the man who robbed B” and that immediately afterwards A ran away, are relevant. The question is whether A committed a crime. The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal and the contents of the letter are relevant.
Statements explaining and accompanying acts—res gestae: The question is whether A was raped. The fact that shortly after the alleged rape she made a complaint relating to the crime, the circumstances under which and the terms in which the complaint was made are relevant. The fact that without making a complaint, she said that she had been raped is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 34(a) TEA.
Motive: is that which moves a man to do a particular act. It is that which is in the mind of a man and which moves him to act. Motive is the emotion supposed to have led to the act. Motive also can be defined as a desire of revenge some real or fancied wrong; of getting rid of rival or an obnoxious connection; or of escaping from the pressure of pecuniary or other obligation or burden. E.g. the exchange of hot words by the accused tow days prior to the incident can be enough motive to kill a person. In the case of John Makindi v. R [1961] E.A.327 the evidence of a previous beating of the deceased by the accused which had resulted in the latter’s conviction was admissible under this section as showing a motive which the accused had revenge on the deceased.
Conduct: mere statements as distinguished from the act cannot constitute conduct unless those statements accompany and explain the acts other than statements. Signs made by the deceased shortly before her death when questioned as to the circumstances under which injuries had been inflicted on her, could not be proved as conduct as taken alone and without referring to questions leading to them, there is nothing to connect them with the cause of death and so to make them relevant.
Preparation : preparation consists in devising or arranging necessary means for the commission of the offence and includes the means of accomplishing it. Though preparation is not an offence, still any fact which shows preparation is relevant. Preparation on the part of the accused to accomplish the crime charged or to prevent its discovery or to avoid his escape or to avert suspicion from himself are relevant on the question of his guilty.
Explanatory and Introductory fact
Section 11 makes admissible facts which are necessary to explain or introduce relevant facts, such as place, name, and date, identity of parties, circumstances and relations of the parties. E.g.
- The question is whether a given document is the will of A
- The state of A’s property and of his family at the date of the alleged will may be relevant facts.
- A is accused of a crime.
The fact that soon after the commission of the crime, A absconded from his house, is relevant under section 8 as conduct subsequent to and affected by facts in issue.
The fact that at the time when he left home he had sudden and urgent business at the place to he went, is relevant as tending to explain the fact that he left home suddenly.
The details of the business on which he left are not relevant except in so far as they are necessary to show that the business was sudden and urgent.
A, accused of theft, is seen to give the stolen property to B who is seen to give it to A’s wife. B says as he delivers it “A says you are to hide this.” Bs’ statement is relevant as explanatory of a fact which is part of the transaction. Under this section it is not necessary that the person against whom the statement is made should be present when it is made. (e.g. (iii) above.)
In the case of Stanislai alias Kanyambo s/o Kitambo v. R. (1942) 258 the appellant was convicted for obtaining goods by false pre”tences and for uttering a forged document. On 16th April he presented to a shopkeeper a not purporting to be an order by one Sued for two pieces of Amerikani at the price of 58/= in all. In corroboration of complainant’s evidence was given that the appellant had attempted to obtain 200/= from another person by means of a similar note purporting to be signed by Sued. The court of appeal held that the trial court was wrong in admitting the evidence of a previous similar transaction, saying that although this evidence was admissible under section 9 of the Indian Evidence Act (s. 11 TEA) it should have not been admitted in this case in view of the lapse of time between the two transactions. The court further held that;
Evidence of facts which tend to establish the identity of the accused (which evidence is declared by section 9 (s. 11) to be relevant) is not rendered inadmissible because it disclose the commission of another offence, though legal admissible ought not to be received except where the similarity and the proximity in point of time of the two sets of facts is such that it would be unreasonable to draw any other conclusion than that the accused was the person who concerned in each.
Statements and actions referring to common intention
Section 12 deals with the situation where there are two or more persons who have conspired together to commit an offence or an actionable wrong, that is to say there should be a prima facie evidence that a person was a party to the conspiracy. The acts and declaration of the other conspirators and the acts done at different times are admitted in evidence against the person prosecuted. By the act of conspiring together, the conspirators have jointly assumed to themselves as a body, the attitude of individuality so far as regards the prosecution of the common design; thus rendering whatever is done or said by anyone in the furtherance of that design a part of the res gestae and therefore the fact of all. E.g.
Reasonable grounds exists for believing that A has joined a conspiracy to wage war against the government of Tanzania.
The fact that B procured arms in Europe for the purpose of the conspiracy, C collected money in Dar es Salaam for a like project, D persuaded persons to join the conspiracy in Tanga, E published writings advocating the object in view at Moshi and F transmitted from Arusha to G at Mwanza the money which C had collected at Dar es Salaam and the contents of a letter written by H giving an account of the conspiracy are each relevant but to prove the existence of conspiracy and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him and although they may have taken place before he joined the conspiracy or after he left it.
An act or declaration of a co-conspirator even after the termination of the conspiracy is a relevant fact for the purpose of showing that such person was a part to it. In the case of R. v. Gokaldas Kanji karia & Alibhai Mawnji (1949) 16 E.A.C.A. 116 where the appellants were convicted for conspiracy to export diamond from Tanganyika, the court held that an agreement to conspire may be deduced from any acts which raise the presumption of any common intention. In John Moody Lawrence Brown & Another v. R. [1957] E.A. 371, the appellants were convicted of conspiracy to defraud, the court said that entries in one of the conspirators cheque book indicating the payment of sums to another of the conspirators were evidence not only against the owner of the cheque book but against his fellow conspirators as to the existence of the conspiracy and as to the parties to it.
Section 13 makes facts which are not otherwise relevant to be relevant. This section is regarded as a residuary section. The facts are relevant provided that the conditions specified under subsections, 1 and 2 of this section are fulfilled.
E.g.
a). The question is whether A committed a crime at Dar es Salaam on a certain day.
The fact that on that day A was at Arusha is relevant. The fact that near the time when the crime was committed, A was at a distance from the place where it was committed which would render it highly improbable though not impossible that he committed the offence is relevant.
b). The question is whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C, and D. every fact which shows that the crime could have been committed by no one else that it was not committed by either B, C or D is relevant.
Under this section any fact which either disprove or tends to prove or disprove any claim or charge in a case is made relevant. E.g. where the question is whether X lent money to Y the evidence of the property of X about the time of the alleged loan is admissible to disprove it, or where the question is whether X is the child of Y evidence of the resemblance or want of resemblance of X to Y is admissible. Collateral facts which by way of contradiction are inconsistent with a fact in issue or another relevant fact i.e. which make the existence of a fact in issue or relevant fact probable or which by way of corroboration
Facts tending to enable the court to determine damages
Section 14 enables the court to admit any fact which will help it to determine the amount of damages which ought to be awarded to a party. When damages are claimed in a suit the amount o damages is a fact in issue.
Facts relevant when right or custom is in question
Section 15 provides that where the question is as to existence of any right or custom certain transactions or certain instances are relevant. E.g. The question is whether A has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right or in which the exercise of the right was stopped by A’s neighbours are relevant.
Custom is a rule which in a particular family or in a particular district has from long usage obtained the force of law. For a custom to be valid it must be:
- Ancient
- continuous and uniform
- reasonable
- certain
- compulsory and not optional
- peaceable and
- not immoral
Facts showing existence of state of mind or feeling
Section 16 declares facts which show the existence of any state of (i) mind-intention, knowledge, good-faith, negligence, rashness, ill-will, good-will or (ii) body or (iii) bodily feeling to be relevant when such state of mind or body/bodily feeling is in issue or relevant.
- Intention
A is charged with shooting at B with intent to kill him. In order to show A’s intention the fact of A’s having previously shoot at B may be proved. A is charged with sending threatening letters to B. threatening letter previously sent by A to B may be proved as showing intention of the letters.
- Knowledge
A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen articles. The fact that at the same time he was in possession of may other stolen articles is relevant as tending to show that he knew each and all of the articles he was in possession to be stolen. A sues B for damages done by a dog of B’s which B knew to be ferocious. The fact that the dog had been previously bitten X, Y and Z and that they had made complaints to B are relevant.
- Good faith
A is accused of dishonest misappropriation of property which he had found and the question is whether when he appropriated it he believed in good faith that the owner could not be found. The fact that public notice of the loss of the property had been given in the place where A was, is relevant as showing that A did not in good faith believe that the owner could not be found. A is sued by B for the piece of work done by B upon a house of which A is owner, by the order of C, a contractor. A’s defence is that B’s contract was with C.
The fact that A paid C for the work in question is relevant as proving that A did, in good faith make over to C the management of the work in question, so that C was in position to contract with B on C’s own account and not as agent for A.
- Mental and bodily feeling
The question is whether A has been guilty of cruelty towards B, his wife. The expression of their feelings toward each other shortly before or after the alleged cruelty are relevant. The question is whether A’s death was caused by poison. Statements made by A during his illness as to his symptoms are relevant facts.
Intention, knowledge and similar other states of mind are matters of cogent inquiry in criminal cases, in some civil cases they are very material, e.g. in cases of malicious prosecution, fraud or negligence. In the case of Mohamed Saeed Adrabi v. R (1956) 23 E.A.C.A. 512 the appellant was convicted on two counts of use of criminal force with intent to outrage modest in respect of two boys, evidence that previously the appellant had committed similar acts in respect of other boys was admitted by the court to show the intention of the accuse and rebut a defence of accident or mistake.
Facts Bearing on Question Whether Act was Accidental or Intentional
Section 17 refers to the facts bearing on the question whether a particular act was accidental or intentional and whether it was done with a particular knowledge or intention. The facts that an act form part of a series of similar occurrence in each of the particular person concerned is relevant if the question is whether the act is accidental or intentional. E.g. A is accused of burning down his house in order to obtain money for which it was insured. The fact that A lived in several houses successively each of which he insured in each of which a fire occurred and after each of which fires a received payment from a different insurance office are relevant to show that the fires were not accidental. A is accused of fraudulently delivering to B counterfeit coins. The question is whether the delivery of the coins was accidental. The fact that soon before or soon after the delivery to B, A delivered counterfeit coins to C, D and E are relevant to show that the delivery to B was not accidental.
Evidence of Course of Business when Relevant
Under section 18 when the ordinary course of a particular business is proved, the court is asked to presume that on the particular occasion in question there was no departure from the ordinary and general rule. For instance, if letters properly directed to C are left with his servant it is only reasonable to presume prima facie that they reached his hands. E.g. The question is whether a particular letter was dispatched. The fact 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 in that place are relevant. The question is whether a particular letter reached A. The fact that it was posted in due course, and was not returned to the sender are relevant.
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The work was extracted from open manual on evidence law notes prepared by Tenga & sist.
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