Introduction to the law of evidence in Tanzania.

I. INTRODUCTION TO THE LAW OF EVIDENCE

1. What is Evidence?

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. 

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)

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 has not 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. 

 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

 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

 In 1917, a Zanzibar Evidence Decree  was enacted, replacing the Indian Evidence Act

 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.

 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.

 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

 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. 

 The party who is adverse to the proponent of the evidence is known as the opponent. Again this may be any party. 

 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

 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 facie evidence 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. 

RELEVANCY 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”

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. 

Key points: 

Admissible evidence must be

 Relevant

 Must NOT be excluded by any of the rules of evidence 

 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:

 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

 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 

 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:

 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.

 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. 

 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

 S. 16: Facts showing existence of state of mind or of body or of bodily feeling

 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

Furthermore, evidence of the following is admissible under certain circumstances:

1. Admissions 

2. Confessions

3. Statements by Persons who cannot be called as witnesses

4. Statements made under special circumstances

5. Judgments of Courts

6. Opinions of third parties

7. Character of Parties

(these will be discussed later in detail)

1. THE DOCTRINE OF RES GESTAE

Under the English common law, any act, declaration or circumstance which constitute, accompany or explain a fact or transaction in issue are said to be admissible in evidence.

Gilmer’s law dictionary defines res gestae as “all of things done including words spoken in the course of a transaction or event”. Osborne’s dictionary defines the same as “the facts surrounding or accompanying a transaction which is the subject of legal proceedings or all the facts so connected with the fact in issue as to introduce it, explain its nature or form in connection with it one continuous transaction. 

Although the phrase res gestae is not found in the TEA, the principle underlying the English law relating to the phrase is incorporated in sections 8 – 11 of the Act.

Analysis of ss. 8 – 11

 S. 8: 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. 

 S.8 lays down the general principle of res gestae, and sections 9 – 11 expound and illustrate this principle.

 Facts which may be proved as part of res gestae must be facts other than those in issue. 

Illustration: 

(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 Kurji (1940) 7 EACA 58, 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 Crown (1950) 7 ZLR Page 36, 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.

In R vs Bedingfield  (1879) 14 COX C.C Page 341, 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. R, (1972) AC 378, 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. Andrews 1987 IAE Page 113, the accused was convicted of manslaughter in a burglary and he appealed. The allegation was that the accused and another man with blankets covering his head knocked on the victim’s door. When the victim opened, the accused stabbed him and assuming death removed the blanket and proceeded to steal. The victim however got up, went to the flat below for help. The police were called and arrived momentarily. When asked by police who the wound inflictor was, he said it was “Donald”. Another police constable said he heard the man say “Donaldson”

The House of Lords held that the victim’s statement had been properly admitted under res gestae because:

• the primary question which the court must ask is, can the possibility of distortion be disregarded?

• 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 reflectional answer.

• 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.

• 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.

 S. 9 Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transactions, are relevant.  

 No case law on the subject.

The 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. 

Illustrations: 

(a) The fact in issue is whether Jack robbed Jill.

The fact that shortly before the robbery, Jill went to a pub with money in his possession and showed other people the Tshs. I million in cash, which he had won in a lottery is a relevant fact. It does not matter whether Jack was among the people being shown the money. This fulfills the “occasion” (chance, opportunity, opening,) part of s. 9. 

(b) 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 constitute “the state of things under which they happened”, i.e. the murder was as a result of a struggle, which Andrew resisted. 

(c) 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. 

“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. 

NOTE: in all situations, this evidence must be supported by other evidence and an accused cannot be convicted from this type of evidence alone. 

 S. 10 

(i) Any fact which shows or constitutes a motive or preparation for any fact in issue or relevant fact is relevant

Motive:

In R vs. Makindi 1961 E.A 32, 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.” It was held that the evidence was admissible to explain and substantiate the cause of death of the boy.

Preparation – illustration (a)

The fact in issue is whether Jack murdered Jill by administering poison. The fact that before the death of Jill, Jack procured a poison similar to the one administered to Jill is relevant.

(ii) The previous/subsequent conduct of any party to any proceedings/suit or her agent, in reference such suit or proceedings, or to a fact in issue or to a relevant fact, is relevant if such conduct influences or is influenced by a fact in issue or a relevant fact

Note that party includes plaintiff, defendant and accused. Agent includes an advocate

Illustration (b): John is accused of a kidnapping, robbery and murder. The fact that after the crime he fled by sea and concealed his identity is relevant. 

(iii) The previous/subsequent conduct of a victim of an offence (complainant), which offence is the subject of any proceedings, is relevant, if such conduct influences or is influenced by a fact in issue or a relevant fact

Illustration(c): The question is whether Ben was assaulted. Shortly after the alleged assult he made a complaint to the police relating to the assult. The circumstances under which the complaint was made and the terms of the complaint thereof are relevant. 

(iv) When the conduct of a person is relevant, any statements made by him or in his presence and hearing, which affects such conduct, is relevant

Illustration (d): the fact in issue is whether Anthony robbed Andy

The fact that after Andy was robbed, Angela said in Anthony’s presence that “the police are coming to look for the person who robbed Andy”, and immediately afterwards Anthony ran away, are relevant. (This does not necessarily mean that Anthony committed the crime. He could be one of those people that the police always suspect of crimes

(v) The word conduct does not include statements, unless those statements accompany and explain acts other than statements.

E.g. illustration (c), if all that Ben did was say that he had been assaulted, without making a complaint, such a statement would not be relevant as “conduct” under this section.

(vi) The above exception does not affect relevancy of statements under any other sections of the Act. 

 S. 11 

(i) Facts necessary to explain or introduce a fact in issue or a relevant fact are relevant

Introductory:

Illus (a) : The question is whether a document is Peter’s will. The state of Peter’s property at the date of the alleged will are relevant facts. 

Explanatory:

Illus (b): Paul is accused of a crime. The fact that immediately after the commission of a crime, Paul left his house in Mwanza, is relevant under S. 10, as conduct subsequent to a fact in issue. The fact that at the time he left home, he had been informed that his father had passed away in Mbeya and was to be buried the next day is relevant to explain the reason why he left home suddenly.

(ii) Facts which support or rebut (refute, deny) an inference (presumption, deduction) suggested by a fact in issue or a relevant fact are relevant (see illustration b)

(iii) Facts which establish the identity of any thing or person whose identity is relevant are relevant. See Stanislasi alias  Kanyambo s/o Kitambo, (1942) I TLR 258

The Court of Appeal held that: 

The test when a question of identity is involved should not only be the similarity of the collateral facts to the facts in issue but also their proximity in point of time; and we hold that evidence should not be admitted except where the similarity and the proximity of the two … acts is such that it is unreasonable to draw any other conclusion than that the accused was the person who was concerned in each…

(iv) Facts which fix the time or place at which any fact in issue or relevant fact happened are relevant

(v) Facts which show the relation of parties by whom any such fact transacted are relevant.