 TOPIC 1: INTRODUCTION TO LAW OF EVIDENCE

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 INTRODUCTION

 Like the name suggests, the law of evidence is premised on proof of alleged facts. It is a means from which an inference can logically be made as to the existence of a fact. In other words, evidence is the demonstration of a fact; it signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other.  

 The law of evidence is a collection of rules governing what facts may be proved in court, what materials may be placed before court to prove those facts and the form in which those materials should be placed before court. Indeed, the Evidence Act cap 6 laws of  Tanzania (hereunder referred to as TEA) is such a law.

 The law of evidence aids a party who wants to be believed in what he alleges. This is because permitting a risk of relying on possible untruths to accept an alleged fact maybe too dangerous that it may result into undeserving loss to the party on whom the alleged fact works against, the law of evidence therefore requires the alleging party to prove his assertions before he can be believed.

 “Evidence” and “evidence law” are two quite distinct concepts. “Evidence” generally refers to those inputs to decision-making that influence its outcome in what, to introduce a third concept, is normally referred to as a “rational manner.  By  contrast,  “evidence  law”  refers to the manner in which the evidentiary process is organized, though  the  organization  of the evidentiary process is contingent on both “evidence” and the nature of  “rationality.” . 

 MEANING OF THE TERM EVIDENCE

 The Concise Law Dictionary quotes Taylor defines evidence to mean all the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation.  

 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.

 By giving a close scrutiny of Section 3 of TEA, the term 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. 

 HISTORICAL BACKGROUND OF LAW OF EVIDENCE IN TANZANIA

 The TEA was drafted by an  Englishman,  James  Fitzjames  Stephen,  and derived  largely from the Indian  Evidence Act of 1872 which also reflect much the English common law of rules of evidence. Essentially there some minimal difference between the English Law of Evidence and the Indian Evidence Act and the Tanzania Evidence which is a parimateria to the aforesaid Act. Thus the historical background of TEA can be traced in a nutshell as follows:-

 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. 

 Since its enactment,  Tanzania  law  of  evidence  of  1967  (TEA)  has  undergone  several amendments for  purposes  of  addressing  several  weaknesses,  which  posed  challenges  in  both Criminal  and  Civil  proceedings.  Despite  all  the  amendments  made,  TEA  has  not  been  able  to keep pace  with  the  development of  today  and challenges that have  emerged .   

 The notable example of amendments undergone by TEA includes that of 2007 which Incorporated the admissibility of electronic Evidence as it  was  observed  by  the  Court  of  Appeal  in  the  case  of  Tanzania  Cotton  Marketing  Board  .v. Cogecot  Cotton  Company  SA , that  “the  law  cannot  be  and  is  not  ignorant  of  modern  business practices  (methods) and  must  not shut its eyes to the  mysteries of the  computers”.  Thus in  2007,  the  legislature  through  the  current  Evidence Act introduced  a  new  section  40A  which provides  for  admissibility  of  electronic  evidence  in  criminal  proceedings  and  section  78A  which allows  admissibility  of  Bank’s  electronic  records  which  was  not  the  case  before  these amendments.   

 However,  the  2007  Amendment  did  not  incorporate  provisions  regarding  how  the  same  evidence should  be  collected,  stored  or  produced  in  court.  

 Fundamentally,  it  does  not  reflect  the  modern  advances  of  legal  knowledge about  evidence  specifically,  the  nature  of  technological  advancement  and  attainment  of  accurate fact finding  which is the  bedrock of  fair trial  and justice .   

 Generally, Globalization  and  rapid  advancement  in  science  and  technology  have  made  the  TEA  look obsolete  to  promote  and  facilitate  accurate,  efficient  and  fair  fact  finding  during  the  trial  process. Ultimately  the  TEA  has  not  responded  effectively  to  a  rational  search  for  truth  rather  the  TEA  is founded  on  obscurity  of  imperial  order  that  had  used  it  to  promote  business  and  trade  of  the imperial  majesty  kingdom  of  England.  Therefore  the  TEA  is  built  on  a  foundation  that  cannot sustain the  aspiration and  realities of modern Tanzania .

 DIFFERENT FORMS OF EVIDENCE

 Evidence may be classified into the following main forms:- 

 DIRECT VERSUS CIRCUMSTANTIAL EVIDENCE

 Direct Evidence, is that evidence which is very important for the decision of the matter in issue. The main fact when it is presented by witnesses, things and witnesses is direct evidence whereby main facts may be proved or established that is the evidence of person who had actually seen the crime being committed and has described the offence. 

 We need hardly point out that in the illustration given by us, the evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police only is called circumstantial evidence of, complicity and not direct evidence in the strict sense. 

 On other hand Circumstantial Evidence or Indirect Evidence- There is no difference between circumstantial evidence and indirect evidence. Circumstantial Evidence attempts to prove the facts in issue by providing other facts and affords an instance as to its existence. It is that which relates to a series of other facts than the fact in issue but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory conclusion.

 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, Where as Hearsay Evidence- Hearsay Evidence is very weak evidence. It is only the reported evidence of a witness which he has not seen either heard. Sometime it implies the saying of something which a person has heard others say. 

 In Lim Yam Yong v. Lam Choon & Co. It was adjudged that “Hearsay Evidence which ought to have been rejected as irrelevant does not become admissible as against a party merely because his council fails to take objection when the evidence is tendered.” 

 So finally Hearsay Evidence is that evidence which the witness has neither personally seen or heard, nor has he perceived through his senses and has come to know about it through some third person. 

 There is no bar to receive hearsay evidence provided it has reasonable nexus and credibility. When a piece of evidence is such that there is no prima facie assurance of its credibility, it would be most dangerous to act upon it. Hearsay evidence being evidence of that type has therefore, to be excluded whether or not the case in which its use comes in for question is governed by the Evidence Act.

 PRIMARY VERSUS SECONDARY EVIDENCE

 Primary Evidence- Section 64 of TEA says Primary Evidence is the Top-Most class of evidences. It is that proof which in any possible condition gives the vital hint in a disputed fact and establishes through documentary evidence on the production of an original document for inspection by the court. 

 It means the document itself produced for the inspection of the court. In Lucas v. Williams Privy Council held “Primary Evidence is evidence which the law requires to be given first and secondary evidence is the evidence which may be given in the absence of that better evidence when a proper explanation of its absence has been given.” 

 Section 63, Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.

 Primary evidence means the documents itself produced for the inspection of the Court.

 Secondary Evidence- Section 63 says Secondary Evidence is the inferior evidence. It is evidence that occupies a secondary position. It is such evidence that on the presentation of which it is felt that superior evidence yet remains to be produced. It is the evidence which is produced in the absence of the primary evidence therefore it is known as secondary evidence. If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by secondary evidence. 

 Secondary evidence means and includes—(1) certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.  (3) copies made from or compared with the original ;  (4) counterparts of documents as against the parties who did not execute them;  (5) oral accounts of the contents of a documents given by some person who has himself seen it.(vide section 65 of TEA).

 Illustration:

 A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

 PRESUMPTIVE 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)

 Evidence is normally received by the court in the following forms:

 ORAL EVIDENCE

 Section 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. 

 Section 61 of TEA prescribed the provision of recording oral evidence. All those statements which the court permits or expects the witnesses to make in his presence regarding the truth of the facts are called Oral Evidence or sometimes called testimonial evidence. 

 Oral Evidence is that evidence which the witness has personally seen or heard. Oral evidence must always be direct or positive. Evidence is direct when it goes straight to establish the main fact in issue.

 All facts, except the [contents of documents or electronic records], may be proved by oral evidence.

 According to section 62 of TEA Oral evidence must, in all cases whatever, be direct; that is to say—if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

 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. 

 DOCUMENTARY EVIDENCE

 Section 3 of TEA says that all those documents which are presented in the court for inspection such documents are called documentary evidences. In a case like this it is the documentary evidence that would show the actual attitude of the parties and their consciousness regarding the custom is more important than any oral evidence.

 REAL EVIDENCE

 Real Evidence means real or material evidence. Real evidence of a fact is brought to the knowledge of the court by inspection of a physical object and not by information derived from a witness or a document.

 Personal evidence is that which is afforded by human agents, either in way of disclosure or by voluntary sign. For example, Contempt Of Court, Conduct of the witness, behavior of the parties, the local inspection by the court. It can also be called as the most satisfactory witness.

 Other classes of evidence includes the followings:-

 Judicial Evidence-Evidence received by court of justice in proof or disproof of facts before them is called judicial evidence. The confession made by the accused in the court is also included in judicial evidence. Statements of witnesses and documentary evidence and facts for the examination by the court are also Judicial Evidence.

 Non-Judicial Evidence- Any confession made by the accused outside the court in the presence of any person or the admission of a party are called Non-Judicial Evidence, if proved in the court in the form of Judicial Evidence.

 PRE COLONIAL RULES OF EVIDENCE

 At the very beginning it is better to understand that in the modern society trials are utmost uniform but during pre colonial era, trials differs from one society to another depends on the mode of dispute settlement. 

 These trials includes; trial by battle, trial by moot, trial by ordeal, trial by oath as well as trial by witness. It is in the cause of explaining these trials where rule of evidence is discussed as the rule of evidence is the only means or principles which governs the whole process of bringing evidences before the court of law or other competent bodies including tribunals. 

 The following are those rules basing under those various trials;

 Trial by Ordeal. This was used during slavery mode of production. It involved tortures and intimidation to extract information from the parties, which include carrying hot iron, administration of certain medicine to parties, the one who would be affected would be considered to be guilty. For example one would be forced to carry a hot iron on his hand for a while after which the hand would be scolded. Then the hand would cover with a piece of cloth or grass for three days after which it would be uncovered. The one who was still scolded was guilty. 

 This trial by ordeal believed in superstitions credibility, that the innocent person would not get burnt or scalded. In the case of Rex v. palamba s/o fundikila,  a traditional medicine called ‘Mwavi’ was used to identify a guilty party. It was believed that if a person takes it and he or she has done something wrong, he or she will die, whereas if a person takes it and he or she has not done anything wrong he or she could not die. The family of the four wives who were suspected to have killed one child among eleven of that family were forced to take medicine. And the one who would be affected by such medicine was presumed to have committed the offence. This mode has the following weaknesses.

 There was no logical connection between the commission of the offence and the administration of the certain amount of medicine to the suspected. Also there was no specific amount of medicine to be awarded to the suspected person hence one can die only because was over doze but will considered guilty of an offence alleged to have committed.

 Trial by moot; this is one of the trial mode that existed in pre-colonial; it involved settling dispute by debating or putting the debatable issue under discussion. The parties in dispute were allowed to present their evidences in conclave; this normally included the elders of the community and in case of appeal the case was referred to the internal moot which was the final in solving dispute. This can be traced in Kadume`s case. In the case Kadume son of Makara who was in dispute with Soine, where trial by moot took place in the dispute that involved inheritance of land. 

 The rules of evidence found in this mode of trial were based on arguments, in order for the parties to adduce evidence they were required to argue and present their arguments before the elders and in course of doing so they were also adding evidence to support their allegations. At the end the elders were to rule on parties’ evidence and serve justice to the disputants based on evidences procured by the parties. 

 Trial by Moot had weakness as a party who could convince people by his speech would get a lot of support and at the end win the case while as rule of evidence such thing should not be entertained as justice does not mean having a lot of support so as to win the case.

 Trial by battle, this method employed in solving disputes during the pre colonial period whereby a person brought an allegation against another have to fight against the person to whom the allegation brought to. 

 The rule applied in this trial was contest rule that means a person who will win such contest is the one who would be proclaimed right. Furthermore in the battle method if a person failed to fight against whom he claim the debt, he have a chance to employ another person from his society to fight on behalf. 

 The problem of this method is that all bouncers at the time then were presumed to be innocent. In other side the method paved the way on the matter concerning legal presentation in our court of law.

 Trial by witnesses was one of the mode of solving disputes whereby the party which ascertained the existence of a certain fact had to support his claim by using witnesses. There was not cross examination of these witnesses. Sometimes the party would be asked to bring five witnesses or more. If one of them gave a different story from the rest then the part which called the witnesses was guilty or lost the trial, also during that time weight of the testimony was immaterial, the only thing which was considered was the number of witnesses. 

 The Weakness here was that traditional procedures did not provide for the cross-examination of the witnesses. There was thus a possibility of the decision being based on extraneous factors especially because no record was kept. The African Tribunals settled disputes, however while witnesses were allowed to give evidence on that alleged matter, the parties were not allowed to be present while evidence was being produced. This is contrary to modern systems of presenting evidence.

 Trial by Oath. In this system a party was tried by oath alone without further proof in the early stage of the trial. This was done by people known as Oath Helpers. This was a prominent fear of God within the whole society, oath had been associated with the belief that the maker will tell the truth and if he does not then he will be punished by God. It was done during Communal mode of life.  

 The Weakness is that, during the pre-colonial period, oath once taken by a person, such person is believed to have spoken the truth, while in real sense a person may tell lies under oath. So it was not supposed to be a thing which guarantee the truth of evidence adduced by such person.

 RULE OF EVIDENCE IN THE MODERN SOCIETY

 The rules of evidence are guidelines that determine how the evidence should be handled, the guideline takes into consideration what evidence is admissible, when it is admissible and is who is entitled to present it. The purpose rules of evidence are to regulate the portion of trial process that pertains to evidence so that proceedings can be fair for all parties.

 Thus the current rules of evidence involve the character of witnesses, conduct as well as they determine how witnesses are interrogated and cross examined. It also concerned with circumstances surrounding the submission of documents. Therefore some rules pertained the evidences of today include the following.  

 First, Hearsay evidence is generally not admissible. This is evidence, usually testimony, which adduced by a person other than one who seen or heard the matter in dispute. As the general rule this kind of evidence is not admissible before the court of law though there are some exception to the general rule.

 Second, Evidence must be confined to the matters in dispute, this means the evidence to be adduce must have direct connection with the fact in issue. Fore stance if the fact in issue is murder then the evidence should reveal the ingredients of murder so that to make connection with the fact in issue.

 Third, Best evidence must be given in all cases, this means that the best evidence rule states what and when evidence such as a document or recording is presented, only the original will be accepted unless there is a legitimate reason that the original cannot be used if the original is unavailable the copy must be proved.  

 CONTRIBUTION OF PRE COLONIAL RULE OF EVIDENCE TO THE MODERN RULE OF EVIDENCE

 Despite the weaknesses, the rule of evidence during pre-colonial era has contributed much to the modern rule of adducing the evidence.

 To begin with, Trial by witnesses, even in the modern court systems witnesses are being summoned to give evidence, therefore modern court system has adopted this system but the difference between the two is that; in the modern court system, what matters is how substantial and relevant the evidence given by witness is, and not just the number of witnesses as it was in the pre-colonial period .

 When looking at Trial by battle, we see contribution to the modern court system in that it has facilitated the system of representation. In pre-colonial societies people were allowed to ask their relatives to go and fight on their behalf, the same this is happening in modern court system, that is people ask for legal representation in their cases and the situation in court now is like a battle since people give their arguments, and the one with strong and relevant arguments is the one who wins but the difference is that it is not physical battle like in the pre-colonial period but battle of words.

 The contribution of trial by oath is that even in modern court system witnesses are still required to take oath before giving evidence.

 Trial by Moot has contributed in the modern rules of evidence in that it has facilitated establishment of the right to be heard , because people are given the right to speak and defend their cases. The same happened in pre-colonial period in trial by moot. Also right of aggrieved party to appeal  as was seen in Kadume`s case.

 In general, rule of evidence existed during pre colonial society apart from witnesses. However basing on the modern rule of evidence which are genuine, systematic, advanced and codified then still by making comparison with those of our ground fathers, one can still not affirmatively argued that there were rule of evidence in pre colonial era. This means there were weak compared to the current one however they are still reflected in the current one as explained above. Though there were not logical and systematic in such but take into consideration the nature of society, mode of production and relation still were satisfactory by them.