Answered by: Thiaka Kisebu
College: Makumira university (Arusha)
Programme: LLB
Year of study: II
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Qn: The basic principle is that so far as possible all evidence in the suit should be taken viva voce before the trial court. Anyone who seeks to have the evidence taken in any other way is seeking an indulgence of the court and must show good reasons to justify his application.
Discuss the assertion above.
- INTRODUCTION
Viva voce is a Latin word that stands for ‘with living voice’. ‘By word of mouth or orally’. In reference to the examination of witnesses, the term means that oral rather than written testimony is to be taken before the court of law.[1]
Viva voce, being an oral evidence, is well defined under section 3 (1) of Tanzania Evidence Act, 1967 (hereinafter referred to as TEA) to mean all statements, which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.
- DISCUSSION ON THE RULE REGARDING VIVA VOCE (ORAL
EVIDENCE)
- The General Rule regarding to Viva Voce:
After having seen the definition of viva voce (oral evidence) hereinafter is the discussion of the rule. This rule is governed by the provisions of Order XV111 of the Civil Procedure Code, 1966 (hereinafter referred to as CPC). The said Order XV111 deals with the hearing of suits and examination of witnesses. This Order enacts the principle of orality of proceedings as opposed to the principle of documentation which applies in pleadings. Rule 2 (1) of the same Order states that:
“On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of issues which he is bound to prove.”
The other party shall then state his case and produce his evidence, if any, and may then address the court generally on the whole case, as provided for under rule 2 (2) of the same Order.
The basic principle regarding viva voce is well stated in the case of Premchand Raichand Ltd & Another v. Qurray Services of East Africa Ltd. & Others[2] that:
“so far as possible all evidence in the suit should be taken viva voce before the trial court. Any one who seeks to have evidence taken in any other way is seeking an indulgence of the court and must show good reasons to justify his application.” The point of discussion here is on the issue of what amounts to good reason. In answering the above issue we are of the view that on the side of the party, there may be personal reasons, such as ill-health or inability to obtain a visa or the applicant has to show that the evidence is necessary and the witness can not be procured to appear before the court of law so as to testify.
The above principle was adopted in the case of Leopold Wolford (Zambia) Ltd V A.H. Hunter[3] The same position of the law is complimented by section 62 (1) of TEA.
2.2 Exception to the general rule:
After having seen the general rule regarding to viva voce, here below is the exception to the rule that not always the evidence should be adduced orally. There are circumstances which the evidence can be adduce through written way or any other way as it deem fit. The following are the circumstances under which the evidence can be adduced in other way other than viva voce.
The first circumstance is that, there is a time the court accepts evidence by way of an affidavit as an exception to general rule. An affidavit is a document which contains sworn statements of facts signed by the deponent before the commissioner for oaths which can be used as evidence in proceeding before court.
However, as stated in the case of Standard Goods Corporation Ltd V Harakhchand Nathu and Co.[4] that affidavit based on information must disclose the source of information, this is not merely matter of form, but goes to the essential value of the affidavit. It may have been sworn in all sincerity and the deponent may have been advised as he says, but since the source of information may have been unreliable, the affidavit can have no evidential value.
The second circumstance under which the court accepts evidence other than viva voce is on the point of commission as provided for under order 26 of The Civil Procedure Code[5]. Commission can be defined as an authority to exercise a power or a direction to perform a duty; for example, a commission of a justice of the peace[6]. Under order 26 rule 1 of the CPC the court may examine witnesses who can not appear before the court. Under this order the witnesses are of two types, (a) those who are within the jurisdiction of the court but can not be compelled as they are protected by law for instance Diplomats. To know who is protected and who is not, one has to look at the law. (b) those who are outside of the jurisdiction of the court.
Application for commission may be made either by courts on motion or either of the parties to move it. The application must be supported by an affidavit which will contain facts which necessitate commission powers of court as provided for under order 26 rule 4 of the CPC (supra). The court has power to issue a commission for a witness who is beyond territorial limits of its jurisdiction. It may also order commission of a witness who is about to leave its territorial limits. A person to whom a commission is issued is known as commissioner who has the power to examine witnesses, record the evidence and return the records to the court which issued the commission and where it is possible, the witness will be given the day and time of examination and may be given a right to cross examination.
However, where a party did not have an opportunity to cross examine the opponent during the commission, such evidence can not be adduced in court unless the parties are personally in court.
Another circumstance which the court accept the evidence adduced in other way than viva voce is through dying declaration as stipulated under section 34(a) of TEA, for the statement made under dying declaration to be admissible two conditions must exist, these are: (a) the person who made the declaration is really dead and the second one is that the alleged declaration must be original and such statement must refer the cause of death or the circumstances of his death or the transaction leading to his death.
- ADVANTAGES AND DISADVANTAGES OF VIVA VOCE (ORAL
EVIDENCE)
In respect of the above discussion, viva voce (oral evidence), being direct evidence has its advantages and disadvantages as explained hereinafter:
- Advantages
Viva voce (oral evidence) complies with the ‘Best Evidence Rule’ which requires that oral evidence should be adduced direct; that is to say, a witness who by the words of mouth appears before the court of law to testify as provided for under section 62 (1) of TEA.
Secondly, viva voce (oral evidence) gives an opportunity to the opponent party to cross-examine a witness who has testified so as to test his demeanor.
Thirdly, viva voce (oral evidence), being a direct evidence, reduces the risk or tempering with the evidence.
Fourthly, viva voce (oral evidence) enables the court to ask the witness for more clarification on controversial issues since there is eye to eye contact.
- Disadvantages
Viva voce (oral evidence) has relative costs due to the fact that it requires personal attendance of witnesses before the court of law; so courts and parties incur costs to procure attendance of those witnesses.
Another disadvantage of viva voce (oral evidence) is that, it tends to delay proceedings because there are some witnesses who are not easily procured due to unavoidable circumstances, such as illness, diplomatic immunity, death, etc, hence justice delayed is justice denied.
- CONCLUSION:
By the way of conclusion and for the submissions made thereof, this piece of writing has the following to say, viva voce being an oral evidence is regarded by courts of law to be the best evidence to be tendered before it regardless its exceptions and weakness (disadvantages) as explained in part 2.2 and 3.2 in this paper.
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