COMPETENCE AND COMPELLABILITY OF WITNESSES

INTRODUCTION

Under law of evidence, competence is potrayed through the ability of a witness to give
evidence at trial. This is determined by a court of law that a witness is qualified to be ‘heard’
since a competent witness must have capacity of a person to give evidence. Not all people have
that capacity, such as the old people, insane, children, they may give evidence but they are
subjected to exceptions.

Compellability can be termed as a state of a competent witness to be forced to give evidence in

court even when he is not willing to do so. Compellability means whether a particular witness
can be subjected to the compulsory process of court to induce him to testify, for example can
that person be summoned? If such person refuses, can he be arrested and imprisoned for
contempt of court? Sometimes not all witnesses are compellable especially if they enjoy certain
privileges.

COMPETENCE OF WITNESSES:

Rules governing competence: - The general rule is that all persons are competent unless they
suffer from a certain disability. Furthermore *section.117 stipulates that:

All persons shall be competent unless the court considers that they are prevented from
understanding questions put to them or from giving rational answers to those
questions by tender years, or extreme old age, disease of body/mind or any other cause
of the same kind.

Therefore disability is not inability since a lunatic is not incompetent to testify unless he is
prevented by his lunacy from understanding the questions put to him or her and to also give
reasonable answers rational. In the case of ** R v. HILL

**However this does not insinuate that the witnesses are in postion to answer all questions
put to them, for example incase the answers can incriminate him or her. Thereby he or she
enjoys certain privilges thus *exceptions to the general rule under *section 117 is that “All
persons shall be competent unless the court considers that they are prevented from
understanding questions put to them or from giving rational answers to those questions by
tender years, or extreme old age, disease of body/mind or any other cause of the same kind”
thus all competent witnesses are compellable thus are compellable to give evidence

Competence of special categories of witnesses: In criminal cases, an accused is competent but

may not be compellable under *article 28 (3)(b)(g) of the constitution of Uganda.
Under *section 118 and *article 28 (3)(b) provides for a dumb witness is (one who is
unable to speak) he or she may be a competent witness, being a deaf mute does not
render a person incompetent per se. The court must then conduct a voir dire
examination to find out if the witnesses is rational to understand the kind of questions put
to them and also the nature of the oath. He may give his or her evidence in any other
manner in which he can make it intelligible as by writing or signs but writing must be
written and the signs must be made in open court. In the case of *HAMISI S/O
SALUM v. R [1951] 18 EACA 217: Facts: This case involved a deaf mute witness who
would make some noises. He was called as a witness and the trial Magistrate allowed
this. The witness gave evidence with the help of a sister who said that she understood
the noises. The sister was then sworn in as an interpreter. The case went on appeal
because of the witness’s form of evidence and the use of the sister as an interpreter.
Held: Court of Appeal- Such a witness was competent but in this case, the method of
interpretation was so crude that the witness should not have been allowed to give
evidence. Where there is need for interpretation, an expert should be called; the
sister could have been biased.

An accused person; in civil proceedings the parties are competent witnesses while in
criminal cases, the accused is a competent witness for the defence or for him or
herself, but he is not compellable to give evidence at his trial. There are a number of
options at his trial. He can give evidence on oath by way of application; where he does
so, the prosecution can examine him. Cross examination is the only time during which an
accused person may be compelled to answer questions. See** section.131. And under the
constitution *article 28(3)(a) In practice, whether an accused gives sworn evidence or
not, should not be used against him in judgment.

An accomplice is one charged with, but not for the same offence as the accused. He or
she is a competent witness against an accused person and a conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of an accomplice.
However courts convict on uncorroborated evidence of an accomplice. During trial, when
a witness other than the accused stands before court, such evidence must be on oath.
Apply *NASOLO v. UGANDA [2003] See s.12 of the Oaths Act. And **section 132 of
the evidence act cap.6
Spouses: **Section 120 and 121 of the Evidence Act. In criminal proceedings, the
following provisions shall have effect: *S. 120 (1) (b) - The wife or husband of the
accused shall be a competent and compellable witness for the defence and whether the
accused is charged alone or jointly with another person. The rationale for this is to
protect the confidentiality in marriage, i.e. any marriage recognized by the laws of
Uganda. In ss120 (2) the terms ‘husband’ and ‘wife’ mean respectively the husband and
wife of a subsisting marriage as such under any written or customary law. The principle
laid down in *R v. AMKEYO [1917] 7 EALR was changed in the case of Alai v Uganda
where it was sought to use evidence of the accuser’s wife. Court recognized her as a
wife and she could not therefore testify against her husband. Because of this ruling,
s.120 was amended to have s.120

(i). As to whether spouses can testify against each other is still a big question, e.g. in
Kenya, where the spouse is being charged with bigamy, incest or any moral offence,
stealing property of the spouse, a spouse may be compelled. English cases, however,
have applied these instances selectively: R v. LOCKWORTH [1931] 1 KB 117 Facts:
The husband was accused of inflicting grievous bodily harm on the accused. The wife
was called to testify against her husband and she refused. Held: when a husband is
indicted for inflicting harm on the wife, she is a compellable witness for both the defense
and the prosecution. If she refuses continuously, she is incompetent in court.

In civil proceedings, however, spouses are both competent and compellable. *S. 121 of
the Evidence Act- In civil proceedings, the parties to the suit and the husband and wife
of any party to the suit shall be competent and compellable witnesses.

Children of tender years: All persons are competent to testify, however, under s.117 of
the Evidence Act, a child of tender years may not be a competent witness if by reason of
his or her age, the child cannot understand the questions put to him or her, or if s/he
cannot answer rationally. For this category, they may not always be considered as
competent witnesses. There is no statutory definition of who a child is, but a number of
cases have considered this: KIBAGENYI v. R [1959] EA 92, Facts: The appellant was
appealing against a conviction for murder. The main evidence against him at the trial
court had been given by his 2 sons, one aged between 12-14 years and the other between
9-10 years. He challenged the admissibility of their evidence on the grounds that they
were children of tender years and therefore incompetent witnesses. Held: The phrase
‘child of tender years’ refers to any child of the average or apparent age of 14 years.
Whether or not a particular child is of tender years depends on the good sense of court.
OMUKONO v. UGANDA [1979] HCB 171
 Procedure of court with regard to child witnesses

Where the court is faced with a child witness, it is expected to voire dire, which involves
an attempt to determine if the child understands the nature of an oath, whether the
child has sufficient capacity or intelligence to give reliable evidence and whether the
child knows the duty of telling the truth, i.e. can the child distinguish right from wrong or
even know the consequences? In **UGANDA v. OLOYA S/O OMOKE [1977] HCB 4 Held:

i) When a court is confronted with a child of tender years as a witness, it should

question the child whether she/he understands the nature of an oath. If court finds that
the child does not understand the nature of an oath, it may not allow the child to give
evidence.
ii) If the child understands, the child may give sworn evidence. If the court does not
allow the child to swear, it is up to the court whether in its opinion, the child is
possessed of sufficient intelligence, to justify the reception of his or her evidence and
whether the child understands the duty to tell the truth.
iii) Special note must be taken that where a child is a prosecution witness, the court
should also direct itself that the child’s evidence needs corroboration, but in all cases
of child witnesses, court must conduct a voire dire. If court does not, that is a good
ground for appeal and quashing such evidence.

If a child gives unsworn evidence, it must be corroborated. However, in practice, all

evidence given by children must be corroborated. The rationale is to ensure the
reliability of their evidence. If they cannot swear, they must affirm that they will tell
the truth and nothing but the truth. If a child witness gets tongue-tied ordinarily,
the advocate or person representing the child may ask for an adjournment. See s.12
of the Oaths Act.

COMPELLABILITY OF WITNESSES

Compellability means whether a particular witness can be subjected to the compulsory process of
court to induce him to testify. General rule: All ordinary witnesses are compellable to testify
on matters asked of them during proceedings. *S.131 Evidence Act- A witness shall not be
excused from answering any questions as to any matter relevant to matter in issue in any suit
or civil/ criminal proceeding upon the ground that the answer to such question will
incriminate or may tend directly/ indirectly to incriminate such witness or that it will expose
such witness to a penalty or forfeiture of any kind or that it may establish or tend to establish
that he owes a debt or is otherwise subject to a civil suit.

There are, however, special categories of persons who are not compellable, e.g. an accused
(with a constitutional right to silence). However, *the exception is under s.131 where the
accused gives sworn evidence; the accused is compellable to answer questions. Swearing means
taking an oath to tell the truth therefore you cannot be heard not to answer a question asked.
What happens when a witness gives evidence different from what was in his statement to the
Police? How about those who refuse to give evidence in court yet they have been called as
witnesses? Such people may be charged with contempt of court for 7 days until they give
evidence before court. ( Refractory witnesses).

A hostile witness is a witness on the accuser’s side but when giving evidence, starts giving
evidence against the accused and in favour of the prosecution. How do you deal with such a
witness? You may apply to court to declare such a witness hostile. You then have a right to
ask court to allow you to cross examine your witness in this manner:

a) Examination-in-chief: You encourage the witness to tell their story, during which you
treat them very calmly and gently to speak without fear or intimidation. At this point if
you find him hostile, you may indulge court to declare him as such.
b) Cross examination: This is done by the other side, to destroy or impeach the credit of
the witness by showing that their evidence should be taken with less weight and that it
should not be believed. Once court rules that he is unreliable, no side can use him. If this
step of cross examination is skipped, court will still consider the evidence adduced.
c) Re-examination: During this time, whatever else a witness has to say is heard although
the court has the final say. The party who called the witness tries to repair the damage
that was caused during examination in chief and cross examination. At this point new
evidence cannot be introduced unless it is to clear any damage that had been caused at
those previous stages. If it is found that the witness told lies, such witness may be
prosecuted for perjury. See s.131 Evidence Act.

Exceptions to the general rule as to the compellability of witnesses

Most of these are based on the privileges granted by law, e.g. public privilege, professional
privilege and private privilege. These privileges are based on public policy, i.e. a spouse cannot
testify against another his/ her spouse due to the desire to protect the marriage institution. A
witness may be competent but not compellable.

Private privilege: This is the privilege or immunity enjoyed by private persons as a result of
their personal status, e.g. husband and wife. See s.120. The communication between spouses
during the subsistence of the marriage is deemed to be privileged therefore a spouse cannot be
compelled to testify against the other during criminal proceedings. The aim is to protect the
sanctity of the marriage relationship. The parties are still bound even after divorce/separation.

Professional privilege: This refers to the privileges enjoyed by professionals not to disclose any
communication between them and their clients, e.g. doctors cannot be compelled to testify about
matters that come to their knowledge in the course treating their patients. They are bound by
their Laws and Ethics not to disclose, which if they do, amounts to misconduct.
The Evidence Act specifically provides for the protection of Advocates and Legal Advisers
against compulsion from testifying about matters between them and their clients. *S.125
provides: that no Advocate shall at any time, be permitted, unless with his client’s express
consent to disclose any communication made to him in the course and for the purpose of his
employment as such Advocate by or on behalf of his client or to state the contents or
conditions of any document with which he has become acquainted in the course and for the
purpose of his professional employment or to disclose any advice given by him to his client
during the course of and for the purpose of his employment. It would amount to professional
misconduct if such advocate failed to disclose although there is an exception where the client
gives express consent to disclose.

OMARI S/O SALUM V R [1956] 22 EACA : Held: Court restated the provisions of s.125, that
it is professional misconduct for an advocate to disclose any communication made to him by
his client, unless the latter has consented, that the only exception is when the client has
consented or when the communication is for an illegal purpose.

However S.125 has exceptions to this rule. The proviso- provided that nothing in this section
shall protect from disclosure:

a) any such communication made in furtherance of an illegal purpose;

b) Any fact observed by any Advocate in the course of his employment as such showing
that any crime or fraud has been committed since the commencement of his employment.
The section also says that the obligation not to disclose information unless it is for an
illegal purpose continues even after the employment relationship has ceased.

S.126 - the obligation not to disclose as well as the privilege of not being compellable extends to
the interpreters, servants and clerks employed by the Advocate. This is in recognition of the fact
that the advocate does not know of the facts or act on them alone. They are bound even on
termination of the contract.

Under s.127, even if a party volunteered the evidence in court on the communication between
him and the Advocate, he shall not be deemed to have consented to disclosure by the Advocate,
i.e. you cannot waive a privilege as attached to the communication. This provision also attaches
to legal advisors- s.128. The difference between an Advocate and a Legal Advisor is that the
former is LDC trained with a PGDP while the latter may not possess those qualifications.

Judges and Magistrates also have judicial/professional privilege. S.119 provides that no
judge or magistrate shall, except upon the specific order of some court to which he is
subordinate, be compelled to answer any questions as to his own conduct in court, as such judge
or magistrate or as to anything which came to his knowledge in court while in such position, but
s/he may be examined as to other matters which occurred in his presence while acting as such
e.g. Her Worship Alividza and the accused, Arinaitwe…she could testify.
S.124 provides for both professional and public privilege- no magistrate or police officer shall
be compelled to say where he got any information as to the commission of any offence and no
revenue officer shall be compelled to say where he got any information as to the commission of
any offence against the public revenues. This section protects informers.

Public Privilege: This protects Government secrets from disclosure during court proceedings. It
deals with Diplomatic and Presidential immunity. These categories of people cannot be
compelled to give evidence in court. See ss122-123. From these sections, the issue is- who has
the authority to determine whether the public interest and security would be in danger? In court
the issue is usually whether the court can compel a public officer to explain why he thinks a
public document must be confidential. DUNCAN v. CAMMELL-LAIRD

Facts: A British sub-marine was sunk during World War II, killing 99 men. The dependants of
the deceased persons sued for damages due to negligence. They applied for the discovery of
certain documents relating to the accident. Government refused to disclose the documents
contending that their production would injure public security. The plaintiffs counter-argued
that the claim for privilege should not be final, but should be investigated by the court to avoid
injustice. Held: HOL- The court should accept the claim for privilege on face value and should
not inquire into the reasons for not disclosing the documents.

CONWAY v. RIMMER: Issue: The issue was the same as in the Duncan case; however, the
HOL overruled their decision in the Duncan case. Facts: The plaintiff was a former Police
Constable. He sues the department for malicious prosecution and false imprisonment and he
applied for discover of certain documents in the possession of the defendant who claimed
privilege. Held: Court laid down a number of principles:

i) The documents should be provided for inspection in court and if court finds that disclosure
will not be prejudicial to public interest or that any possibility of such prejudice was
insufficient to justify its being withheld, then disclosure should be ordered.
ii) In all cases, the court should balance the two conflicting public interests in such cases, i.e.
that no harm should be done to the state by disclosure against the public interest in the proper
administration of justice, by ensuring that all relevant evidence is adduced.
*DOCUMENTARY EVIDENCE
The guiding Law on the admissibility (the quality or sates of being allowed to be entered into
evidence in a hearing or trail or other official proceeding) of documentary evidence in
Uganda is the Evidence Act Cap 6 mainly Sections 60 – 100. *This principle portrays the
rules that govern the admission of documents in evidence hence it envisages evidence of
people who cannot be called to tender evidence. We shall look at:

a) Concept of a document;
b) Classification of documents;
c) Proof of execution/ authenticity/genuineness of a document
d) Rules of proving contents of documents;
e) Presumptions relating to documents;
f) Admissibility of extrinsic evidence to prove the contents of a document (parole evidence
rule and exceptions).

CONCEPT OF A DOCUMENT;
Under *Section .2 (1) (b) of the Evidence Act defines a document as any matter expressed or
described upon any substance by means of letters, figures or marks or by more than one of
those means, intended to be used or which may be used for the purpose of recording that
matter. Under *Section .2 (1) (c) of the same act defines Documentary evidence means all
documents produced for the inspection of court.

Today, it constitutes a will against testimonial evidence therein tombstones, signposts,

buildings, tape recordings are also described as documents, and its emphasised in the
*Tanzanian Evidence Act, where a document is defined “as any writing, handwriting,
typewriting, printing, Photostat, photograph and every recording upon any tangible thing, any
form of communication or representation by letters, figures, marks or symbols or by more
than one of those means, which may be used for the purpose of recording any matter,
provided that such recording is reasonably permanent and readable by sight.”

Hence in Uganda, the term ‘document’ suffices a lot more than its ordinary meaning in
*SALAU DEAN v. R [1966] EA 272, tape recordings were considered documents. Therefore,
documentary evidence involves both exhibits and police statements. This principle portrays the
rules that govern the admission of documents in evidence. Furthermore in R v. MAQSUD ALI
[1965] ALLER 464, Issue: Whether or not a tape recorder could be admissible as
documentary evidence? Argument **It was argued that the tape recording was of vital
importance since it contained matters tantamount almost to a confession. This tape was
played to the appellant’s betrayal and they were offered a chance to have their own
witnesses translate it. Held: Evidence of the tape recording was in the circumstances
admissible. The trial judge, having properly warned the jury of the caution with which they
should consider the translations which were properly put before the jury, the recorder was in
substance, a mechanical eavesdropper therefore the recording was indifferent and the judge
had a right to exercise his discretion by not excluding the evidence of the tape and the
translators. Court laid out the following principles:
1. A tape recording is admissible in evidence, provided the accuracy of the recording
can be proved and the voices recorded can be properly identified before the evidence
is relevant and admissible. Such evidence should always be regarded with some
caution and assessed in light of all the circumstances of each case. There can be
question of laying down any exhaustive set of rules by which the admissibility of
such evidence should be judged.

2. Provided that the jury are guided by what they hear from the tape recording and on that
they base their ultimate decision, there is no objection to a copy of a transcript of a tape
recording properly proved, being put before them. All these principles were followed in
the case of:

SALAU DEAN v. R [1966] EA 272

Facts: The appellant was convicted of corruption and giving false information to a person
employed in the public service. The evidence was that the police was informed by the appellant
that a certain immigration officer had asked him for money to refrain from prosecuting his friend
under the immigration trap. Thereafter the police trap was laid. When the appellant met the
immigration officer, he had a long conversation with him. This was tape recorded by various
devices and when the trap closed, the appellant and immigration officer were facing each other.
The latter was in the possession of money given the former by the police. Their conversation was
recorded in Punjabi and translated in English. The immigration officer consistently asserted that
the money was thrust into his pocket after prolonged and unsuccessful efforts to accept it as a
bribe. After the hearing, before judgment, the magistrate had the tape played up in the privacy of
his bedroom, but in the absence of the applicants. The magistrate who was translating was
interested in 2 Punjabi words which were translated into English as ‘keep it’ but he held that the
expression must be construed as ‘take it.’
Issue: Whether the two tapes were properly admitted by court?
Held: The tape recordings were properly admitted and in so doing, it followed the English case
of R v Maqsud where the admissibility of the tape recordings first arose as an issue. Court
held that the opinion of the interpreter on the subsequent playing of the case of the tape
recording which was adverse to the appellant and was given the appellant in the absence of
the appellant or the advocate. In accepting it, the magistrate committed a fundamental error
depriving the appellant not only of the semblance but the absence of a fair trial.
CLASSIFICATION OF DOCUMENTS
There are 3 significant classifications or types of documents. The purpose of this classification
goes to the method of proof.

a) PRIMARY AND SECONDARY DOCUMENTS/ EVIDENCE

Primary evidence
Under *Section 60 of the evidence act provides for the contents of a document which may
be proved as primary or secondary evidence and *Section.61 defines primary evidence
of as a document itself produced for the inspection of the court, therefore, primary
evidence is the original document itself and the section makes a number of explanations
as to the two types of documents:
 *Where a document is executed in several parts, each part is primary evidence of the
document. Where a document is executed in counterpart, each counterpart being executed
by one or some of the parties only, each counterpart is primary evidence as against the
parties executing it.

 *Where a number of documents are all made by one uniform process, as in the case of
printing, lithography or photography, each is primary evidence of the contents of the rest;
but where they are all copies of a common original; they are not primary evidence
of the contents of the original. (for example sub agreements towards a main transaction/
agreement such as an agreement between Uganda and Japan to set up lights in
Wandegeya, that is primary evidence, but if Uganda signs with KCC, that is secondary
evidence). In the case of *DIRECTOR PUBLIC PROSECUTION OF TANZANIA v.
AKBER RASHID NATHANI [1966] EA 13, Facts: Nathan had been accused and
convicted of fraud. He had a licence to sell air tickets to the East African Airways in
Zanzibar. He was alleged to have forged air tickets in mainland Tanzania where he had
no licence to sell them. The appellant challenged the administration of this loose leaf
cyclostyled volume claiming that it was secondary evidence and that no circumstances
had been shown, which warranted its admission. Held: the official agency list was
*primary evidence since it was one of a number of documents made by one uniform
process, capable of producing many others.

Secondary Evidence

Under Section 62 of the same act, lay down under certain circumstances, be given in place of
primary evidence, and includes:
(a) certified copies given under the provisions hereafter contained;
(b) copies made from the original by mechanical processes which in themselves ensure
the accuracy of the copy, and copies compared with those copies;
 (c) copies made from or compared with the original; (e.g. writing out a copy of the
Evidence Act or typing)
(d) counterparts of documents as against the parties who did not execute them;
(e) Oral accounts of the contents of a document given by some person who has himself
or herself seen it.

However there are circumstances under which secondary evidence is admissible under section
64 (1) (a), (g) to (5) are as follows…..in the page 121 of EVIDENCE LAW IN EAST
AFRICA and also apply **section 64 (1) (a) to (g)

b) *ATTESTED AS OPPOSED TO UNATTESTED DOCUMENTS; section 67 to 71

Attesting documents means to witness the signing or execution of a document. It must be

witnessed by another person (s), not the person who signed it. Therein, documentary evidence
requires admissibility of a document to be stipulated by a party or interest to protect, where the
law requires attestation. For example powers of attorney, employment contracts, land sale, a
will as per the succession Act are the contention of the authenticity of a document hence
portrayed evidence to show that a person was present during the making of the will.

Section. 67 – If a document is required by law to be attested, it shall not be used as evidence

until at least one attesting witness has been called for the purpose of proving its execution....
Thus the reason behind attestation is to protect the weaker party, as a general rule.
Exceptions:

Section.68 provides that if no such attesting witness can be found, it must be proved that the
attestation of at least one attesting witness is in his handwriting and that the signature of the
person executing the document is in the handwriting of that person; how is handwriting proven?
See ** section .43; section.45; SALAU DEAN v. R;

Section.69- where there is an admission of a party to an attested document that he himself

executed the document, then that document shall be sufficient proof of the execution against
him;

Section.70- If the attesting witness denies or does not recollect the execution of the document,
and then other evidence may be called to prove the genuineness of that document
 Unattested documents refer to those documents which are not required by the law to be
witnessed in order to be valid. Thus the main difference between those two documents is the
method of proof. In section.71- “An attested document not required by law to be attested may
be proved as if it were unattested.” Thus, it would be proved under section.66 which provides
that if a document is alleged to be signed or to have been written wholly or in part, by any
person, the signature or the handwriting of the document which is alleged to be in that
person’s handwriting must be proved to be in his handwriting.” (See **section.44 & 45) and
**Section.72, for this purpose, gives court, power to compel any person to provide a sample of
his handwriting for purposes of comparison.

****RULES FOR PROOF OF CONTENTS OF DOCUMENTS

General rule: Documents must be proved by primary evidence, i.e. anyone who wishes to rely
on a document must produce and exhibit the original document in court. See section.63

*Rationale and historical background of general rule

The rationale for the rule that documents must be proved by primary evidence is based on the
best evidence rule. According to Phipson on evidence, the rule states that the best evidence
which the nature of the case permits must be given, such as. if the original document is easily
available, it must be produced, however, if not, court will allow the next best evidence through
court procedure. This rule was re-stated in:

In the case of BREWSTER v. SEAWALL, court explained the best evidence rule in regard to the
documents:
“The reason why the law requires the original instrument to be produced is that the other
evidence is not satisfactory, that where the original instrument is in possession of the part and
where it is in his power to produce it, if he does not produce it or take the necessary steps to
obtain its production, but resorts to other evidence, the fair presumption is that the original
document would not answer his purposes and it would differ from the secondary evidence that
the person adduces.”
The rule is made out in somewhat general terms in the sense that whatever is admitted by court is
the best evidence available.
a. Part of it is convenient to the public e.g. not to bring a whole register from the registry;
b. It is speedy, bearing in mind that justice delayed is justice denied;
c. Public policy (state secrets-relevant facts).

According to Wigmore, there are two reasons for the best evidence rule:
“As between the original and a copy, the latter is bound to have inadvertent or wilful errors on
the part of the copyist. Secondly, as between the original and oral testimony, there are added
 risks and errors of recollection due to the difficulty of carrying in memory, literally, the tenor
of the document.”

Wigmore’s reasoning was supported in: VINCENT v. COLE [1828] ER Held: “I have always
acted most strictly upon the rule that what is in writing shall be proved only by the writing
itself. My experience has taught me the extreme danger of relying on recollections of witnesses
as to the contents of written instruments that they may be so easily mistaken that I think, the
purposes of justice require the strict enforcement of the rule.”

The historical origin of the best evidence rule has been said that the law of documentary
evidence originated from the primitive way of trial by document where, if a person produced a
document, it was viewed almost as sacrosanct and that person would definitely lose and in those
days, only the original document became very unfair therefore a number of exceptions to
the rule were developed:

1. Equitable remedy called an order for discovery. If the other side has documents which
are helpful to your litigation, you apply to court which then orders that other party to
discover those documents i.e. produce them.

2. A number of exceptions developed by common law where, if the document is proved to

be lost, the other evidence may be admitted. The above 2 have been codified in the
Uganda Evidence Act cap 6 and are mostly found in section.64. The basis of these
exceptions is found in section.60- The contents of documents may be proved either by
primary or by secondary evidence. S.64 provides for the particular instances when
secondary evidence may be admitted:

Secondary evidence may be given of the existence, condition or contents of a document in the
following instances:

a) S.64(a)- Where the original is shown or appears to be in the possession of the person against
whom the document is sought to be proved, or of any person legally bound to produce it, but who,
after being given notice to do so, does not produce it. This section has 3 main circumstances
under each of which, the requirement of the original may be dispensed with:
i. Where the document is in possession of the adversary who refuses to produce it on
notice;
ii. Where the original is in the possession of a person out of the reach of court and its
processes;
iii. Where the original is in the hands of a person legally bound to produce it but does not do
so after being given notice.
 LAKMANI RAMJI v. SHEJJI & SONS [1965] EA 125

Facts: The appellant sued for payment for extra work done under a building contract. The
respondents’ defence was that the parties had discussed the matter and had agreed on a fixed sum
for payment for all work done and that later, a cheque was sent to the appellant, with a covering
letter which stated that the cheque was in full payment of the appellant’s dues. The appellant said
that he received the cheque but never saw the letter. The respondent produced a carbon copy of
the letter as evidence, which the trial court allowed, but the appellant appealed on the grounds
inter alia, that the trial court had not properly admitted the carbon copy in evidence.

Held: The carbon copy was properly admitted in accordance with s.64 (a) which must be read
with s.65. The latter section provides that in order for one to adduce secondary, it must be shown
that the party proposing to give such secondary evidence has previous notice to the party in
possession or power over the document or to that person’s advocate to produce the document.

There is a prescribed form in which the notice must be if proceedings are done under the Civil
Procedure Rules. However, in criminal matters, there is no procedure, however, court requires
written notice.

b)      Section.64 (b) When it is proved that the contents of the original have been admitted in writing
by the person against whom they are sought to be proved or by his representative. In such a
case, secondary evidence may be admitted, but it must be the writing of the admission;

c)      Section.64(c) contains 3 main circumstances:

i) When the original has been destroyed or lost;

ii) Where the original is in the hands of a person not legally bound to produce it and who, after
being given to do so, does not produce the document;
iii) Where the person seeking to adduce the document cannot, for any other reason, not arising
from his own fault, produce the document in reasonable time.

To proceed under the first circumstance, one must prove that the original document existed and
show court that a diligent search for the document was conducted, but that one failed to find it.
One must also show destruction by e.g. swearing an affidavit as to the burning of a house.

This is the most widely used exception to the best evidence rule because it is the most
accommodating.

d)            Section.64 (d) If the original is of such a nature that it is not easily movable, then secondary
evidence may be admissible for example. if it is a building with certain marks on it, court may
accept photographs of marks on such a building as documentary evidence. Alternatively, court
may decide to visit the scene of the locus in quo;

e)             Section.64 (e) where the original is a public document. See ss.75 & 76;
f)              S.64 (f) where the original is a document of which a certified copy is permitted by the Act.
See s.77;

g)             S.64 (g) When the original consists of numerous accounts or other documents which cannot
be conveniently examined in court and the fact to be proved is the general result of the whole
collection, e.g. a fraud case, documents showing withdrawals on the account, etc. Here, court
accepts a summary of the collection of such books; however, a professional in that area must be
brought. In JOHN BAPTISTE D’SA v. R [1957] EA 627

Facts: The appellants, bank clerks were convicted of fraudulent false accounting and stealing
from their employer. At trial, a bank inspector gave evidence for prosecution concerning his
searches. On appeal, the admissibility of this evidence was contested, the appellants arguing
that neither the original books of accounts referred to by the Inspector were produced in
court, nor were copies of them, therefore his evidence was secondary and as such, not
admissible. Held: The evidence was properly admitted under s.63 (g) and it laid down 4 main
requirements which must be satisfied for secondary evidence to be admissible under that
section:

i) The witness must be skilled in the examination of the documents in question;

ii) The witness must have examined the documents;
iii) The documents consist of numerous accounts or other kinds of documents not
capable of being conveniently examined in court;
iv) The secondary evidence must be for the purpose of proving the general result of
the whole collection of books.
In this case, all the circumstances were fulfilled. S.64 (g) has an element of convenience, is
tailored to avoid unnecessary delay and court may not have the professional skills to examine the
books therefore a professional is brought in to help. BROWN v. R [1957] EA 371 (Who is a
person skilled in the execution of documents?)

THE EVIDENCE BANKERS BOOKS ACT cap7

This Act creates privileges in favour of banks and their books in as far as giving evidence in
Court is concerned. What are the bankers’ books with privileges? These include ledgers, day
books, cash books, accounts books and all other books used in the ordinary business of the bank.
See section.2 for the definition of a bank.
Section.3 provides the mode of proof of entries in bankers’ books. There is no need to bring an
original document, but you may produce a copy of the banker’s book. However, it must fulfil
certain requirements:

a. It must be verified as a true copy of the original;

b. S.4 of this Act requires that an officer of a bank must prove that the bank in which
the entry is found was one of the ordinary books of the bank and that the entry in
issue was made in the ordinary course of business.
Under s.6, special privileges are created for bankers. A banker is not compellable to produce
documents in his books or to appear as a witness about their contents in a case to which he is not
a party unless the court orders him to do so for a special cause.

See ss. 63(a), (c) and (g) of the Evidence Act (Special cause: A person skilled in examination)

With documentary evidence, if you feel that the other party is relying on documentary evidence,
court will admit it if you do not refute this as it would imply acquiescence; or that you concur or
wish to use the document yourself. This matter was considered in: POPATALAL v. NATHOO
VISANDJI [1962] EA 372 :Held: If there is no objection to the admission of secondary
evidence, the party failing to object is presumed to have waived the right to object and cannot
later object to the document having been admitted.

*PUBLIC DOCUMENTS (73) AND PRIVATE DOCUMENTS (74)

Public documents are those available to public scrutiny or accesses, according to section 73, the
following are public documents:
a) Documents forming the acts or records of the acts, e.g. minutes, registers of transactions
e.g. marriage certificate etc of the following people:
a. A sovereign authority e.g. president;
b. Official bodies and tribunals e.g. URA, Court proceedings;
c. Public officers, legislature, judiciary and the executive of whether of Uganda or
any other part of the common wealth of the republic of Ireland or of a foreign
country.
b)   Public documents are also public records of private documents kept in Uganda, in the case of
KAFEERO v. TURYAGENDA [1980] HCB 122, in this case there was an agreement which
was registered after 7 years. Court held that a document once registered becomes a public
document. This makes it easier to prove the authenticity of that document. One may register a
document at any point, if the parties do not register their private documents, it does not render
the document void and there is no time within which registration must be done.

Private Documents
*Section. 74- All documents that are not specified in section.73
See: TOOTAL BODHURST CO. v. AHMED [1950-1951] 24 KLR 31, this case is relevant
when it comes to distinguish between a private and public document. **The significance of
this classification centres on the rules governing the admissibility of the different
documents. For example with a public document, you may tender a certified copy thereof the
court will act on it. However, with a private document, such as company documents, court
usually insists on the original.
 Proof of private documents

Private documents required by law to be attested

Section. 67 – If a document is required by law to be attested, it shall not be used as evidence

until at least one attesting witness has been called for the purpose of proving its execution. The
reason behind attestation is to protect the weaker party, as a general rule.

Exceptions:

1. Section.68 provides that if no such attesting witness can be found, it must be proved that
the attestation of at least one attesting witness is in his handwriting and that the
signature of the person executing the document is in the handwriting of that person; How
is handwriting proven? See s.43; s.45; Salau Dean v R; Walusimbi v Standard Bank
2. Section.69- where there is an admission of a party to an attested document that he himself
executed the document, then that document shall be sufficient proof of the execution
against him;
3. Section.70- If the attesting witness denies or does not recollect the execution of the
document, and then other evidence may be called to prove the genuineness of that
document.

a)      Some of the evidence or methods that may be used to prove execution are: Under s.90, which
has been referred to as the 30 year-old rule. The section creates a presumption that the
documents purporting or proved to be 30 years old, if produced from custody that the court
considers proper for the particular case, then the court may presume that the signature and every
other part of that document, which purports to be in the handwriting of any other person, is in
that person’s handwriting and if it is an attested by the persons by whom it purports to be
executed and attested.

b)      Evidence by estoppel – If the person against whom the document is sought to be adduced has
to be prior conduct, relied on that document, then he is stopped from denying its genuineness.

*PROOF OF EXECUTION OF DOCUMENTS

Under **section 66; 43; 44; 45 which provides that if a document..........his or her document”
and also **page 123 of the EVIDENCE IN EAST AFRICA by H.F Morris: section 70 ;
section 67 ; section 68 ; section 69; section 70. And ; section 71

PRESUMPTION AS TO DOCUMENTS; **section 78

(Presumptions Pertaining To Documents)

A presumption is an inference which the court makes, of the existence or non-existence of
certain facts. There are both rebuttable and irrebuttable presumptions. If it is the former,
evidence may be adduced, however, where it is the latter, no evidence is adducible in as far as
that presumption is concerned.
S.3(1)-Whenever it is provided by the Act that the court may presume a fact, it may either regard
such fact as proved unless and until it is disproved or it may call for proof thereof.

However, in s.3(2), where it is directed by the Act that Court shall presume a fact, then the court
shall regard such fact as proved unless and until it is disproved. (Note the use of mandatory
language.) S.3 (3)- WHEN one fact is declared conclusive proof of another and if the first fact
has been proved, then the court shall presume that the other fact has been proved. For example a
decree absolute in a divorce case is conclusive proof as to the end of the marriage.

Particular presumptions in documentary evidence

a. S.78 - is on the genuineness of documents;

b. S.79 - Presumption as to document produced as record of evidence.

a) The aspect of proof of the presumption of documents otherwise calls for proof of
authenticity or genuineness is important because before a document is admitted in
evidence, it must be proved to court that it is a genuine document, for example it must
be shown that it was duly executed by the person(s) who appears on the face of the
document as the signatories. This principle was laid down in STAMPER v.
GRIFFEN [1856] 20 ED.320: Held: “No writing can be received in evidence as
a genuine writing until it has been proved to be a genuine writing and none, as a
forgery, until it has been proved to be a forgery, that a writing, of itself, is not
evidence of the one thing or the other; a writing of itself is evidence of nothing and
therefore is not, unless accompanied by proof of some sort, admissible as evidence.”

How can genuineness of a document be proved?

Proof of public documents Generally, court admits or tenders in a certified copy in proof of
such document and its contents.
*Section. 75 grant a right to every person to access public records and to get certified copies
thereof. It says that every public office, having the custody of the public document which any
person has the right to inspect, shall give that person, on demand, a copy of it upon payment
of the legal fees therefore, together with a certificate written at the foot of such document.
Such certificate shall be dated and subscribed by such officer, with his name and official title.
If it requires to be sealed, it shall be sealed and thereafter, it is called a certified copy.
 There are a number of presumptions, but section.76 provides that such certified copies as
provided for in section .75 may be produced in proof of the contents of public documents of
which they purport to be copies.

*Section.77 has specific methods for the proof of specific public documents. There is a
presumption under ***section.78 that the court shall presume every document purporting to
be a certificate, certified copy or other copy, which purports to be duly certified by any
officer in Uganda, to be genuine. However, this is a rebuttable presumption, which is why
there is a proviso to **section.78: provided that such document is substantially in the form
and purports to be executed in the manner directed by law.

Also, under s.78, the court shall presume that the officer by whom any such document,
purports to be signed or certified held, when he signed it, the official character which claims
in such paper

b) Presumption as to document produced as record of evidence: Stipulated under

*section 79 ; R v. ALLIBHAL MITHA (1945) 12 E.AC.A. 54 Facts: The accused was
charged with perjury and as part of the evidence, prosecution adduced the trial court’s
record of proceedings as the main proof of false statements allegedly made by the
accused. The accused challenged the admission as being improper, i.e. that although it
was adduced, he did not say it and the record was defective. Held: Court may presume
that the evidence recorded was that given and used against the accused.

c) S.80- Presumptions as to the genuineness of gazettes, newspapers, Acts of

Parliament, etc.
d) S.81- Presumptions as to documents admissible in the UK and Ireland. These are
genuine and admissible in Ugandan courts. If documents would be admissible in those
countries without proof or authentication, then Ugandan courts will admit them too. All
one has to prove is that before the UK and Irish courts, they are admissible without
proof or authentication. For example was envisaged in the case of VENN v. VENN
[1958]E.A 264 Facts: A document was sworn before a Commissioner of Oaths in
England and it was sought to be used in Kenya. Issue: Whether the document was
admissible in Kenyan courts? Held: Since it was admissible in the UK without proof, it
was admissible in Kenya.

Section.82- Presumptions as to maps or plans made by the authority of Government.

Court will presume that they are accurately made and therefore admit them as genuine.
MAGOTI S/O MATOFALI v. R Facts: This concerned sketch maps drawn by policemen. Issue:
Whether or not they came under the presumption of the equivalent of s.82: Held: A sketch plan
drawn by a policeman must be proved to be accurate. Rationale: The policemen were not
experts in map drawing. The documents must therefore be proved to be accurate and in any case,
a policeman is not authorised by Government to draw maps.

f S.90- Documents that are 30 years old are presumed to be genuine.

g. S.89- Court shall presume that every document called for and not produced after
notice to produce is genuine, i.e. if it required, a stamp attestation, it was well done.
h– A presumption with regard to dispositions. A disposition is where s witness for
whatever reason, cannot be present in court, but instead sends written information. Court
nay decide that a disposition be made, i.e. that a group is sent out to record what that
person says e.g. affidavit, people to cross examine, render oath and that evidence is brought
back as a disposition. It is presumed to be genuine without calling the recorder or the
witness to prove whatever is in the disposition. Court also would not call the commissioner
for oaths to prove the contents.
See Magoti s/o Matofali v R
See other presumptions in ss. 83-88. (Fraud, forgery, etc may be adduced to overturn the
presumption.), must use **section 79, 80, 82, 81, 85, 89, 86, 87, 88, 90,

EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

This refers to the admissibility of extrinsic evidence to prove or vary the terms of a document.
The issue is always- whether or not you can admit other evidence to affect what is already
contained in that other document? The general rule is that where there is a written document,
any other evidence to substitute or to vary or contradict the terms of the document is not
admissible. This principle mainly applies in 2 situations:

o If you have a contract reduced to writing, in which case, the terms of that contract
must be proved by reference to the document itself. No oral evidence to vary or
contradict the terms is admissible. See Kilonzo s/o Kanyanya v Purshotam
brothers
o With regard to transactions which are required by law to be in writing e.g. a number
of statutes require that certain transactions must be in writing, in which case, the
transaction can only be proved by the writing. Under the law of contract, contracts of
guarantee, contracts of money lending under the money Lenders Act, etc must be
proved by adducing the written contract itself.

The Parole Evidence rule (Ss. 91-100 UEA)

This is the rule that excludes oral evidence by documentary evidence. According to s.91, when
the terms of a contract, grant or any other disposition of property have been reduced to the form
of a document and in all cases in which any matter is required by law to be in the form of a
document, no evidence shall be given in proof of the terms of such contract, grant or disposition
of property except the document itself. See the other exceptions accepted under the section.

S.92- When the terms of any such contract, grant or disposition of property have been proved in
accordance with s.91, no evidence of any oral agreement or statement shall be admitted as
between the parties for the purpose of varying, contradicting, adding to or subtracting from its
terms. S.92 thus sets out the rule.

Both sections in effect, prohibit one from adducing oral evidence to the affect that the terms of a
contract, grant or disposition of property. However, if oral evidence does not affect the terms and
conditions, then it may be adducible e.g. dates, time if they are not of essence to the contract.

FOLKES AND CO. v. THAKRAR AND ANOR [1959] E.A 36 Facts: The appellant sued a
company and the respondents as guarantors, for a sum of money in respect of 2 consignments of
goods delivered to the company on April 18 th and May 11th 1956 respectively. It was alleged that
the respondents who were 2 of the directors of the company had, on 18 th April guaranteed
payment of all the moneys due by the company for the goods delivered to them by the appellant
and they promised to sign a written guarantee within a few days and that such written guarantee
was delivered on May 22nd, bearing the same date. At the trial, the appellant sought to establish
that the written guarantee had been signed, not on 22nd May but in April before the delivery of
the first consignment of goods and that it was preceded by an oral guarantee. Trial Court
holding: Such evidence was inadmissible. On appeal against this, the appellant argued that the
evidence was to prove that a written guarantee wasn’t signed before May 22 nd. It was
contended for the appellant that the written guarantee covered both past and future credits
and that the consideration for guarantee was a promise for future credit. Issue: Whether oral
evidence was admissible to prove that the guarantee was signed before the date it bore? Court
**Held: The date was not a term of the contract therefore oral evidence could be admitted to
prove that the date appearing on the document was not correct.

Rationale for the rule:

a. It is based on the agreement that parties have made a contract of their own free will and
that the court’s only duty is to enforce the said contract. It is based on the sanctity of the
contract. (i.e. a contract can only come in to interpret and enforce the terms the parties
have contracted on.)
b. The best evidence rule- The document itself is the best evidence of what the parties
intended.

Exceptions to the parole evidence rule

 1.             S.91- When a public officer is required by law to be appointed in writing, if it is shown that
any particular person has acted as such officer, then the writing by which he was appointed,
needn’t be proved, e.g. a company registrar who must be appointed in writing. If such person is
sick or not around, if it can be shown that another was acting as such, written evidence does not
have to be adduced.

2.             In the proof of wills (s.91) - If a will has been admitted to probate in Uganda, it may be
proved by the probate. In applying for probate, you must attach the will, prove the genuineness
of the will in court after which, if you are successful, court grants you the probate. If you then
need to prove they will elsewhere, the grant of probate is evidence of the genuineness of the will
and you needn’t prove it again.

The rest of the exceptions are embodied in s.92- provisos a-f:

3.                  S.92(a)- Any fact may be proved which would invalidate any document, or which would
entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality,
want of due execution, want of capacity in any contracting party, want or failure of consideration
or mistake in fact or law.

H.J. PATEL v. FULABHAL PATEL [1940] 19 K. L. R 41 Facts: This was a suit on a bond.
The defendant argued that the contract was in fact a money-lending contract and since the
plaintiff was not licensed as a money-lender as required by law, then the contract was void. The
plaintiffs contended that the defendants’ oral evidence was inadmissible. Held: The facts
invalidating a contract may be proved by oral evidence. Money-lending transactions by an
unlicensed money-lender are illegal and void therefore evidence was admissible to prove that the
consideration recited in the bond was unlawful and the bond therefore void.

Twentsche Overseas Trading Co. v Jamal Kanji: Facts: The respondents entered into a Hire
Purchase agreement for a van. When the respondents wanted to transfer it into their names, the
appellants refused. The matter went to court and the appellants adduced oral evidence to show
that the respondent had not paid the full value for the car. On appeal: Issue: Whether oral
evidence was admissible in light of the written contract and receipt? Held: It was open to the
appellants to show what the true consideration was and whether there had been a failure of
consideration. The evidence adduced by the appellants was an explanation of the conditional
nature of the receipt and was admissible. S. 92 prevents the admission of oral evidence for the
purpose of contradicting or varying the terms of a contract, but does not prevent a party to a
contract from claiming that there was no consideration or that the consideration rendered was
different from that described in the contract, or that it was agreed to be paid in a different
manner. Uganda Timber Produce Co. Ltd. v Registered Trustees (Oral evidence pertaining to
mistake)
4.                  S.92 (b)- the existence of any oral agreement constituting a condition precedent for the
coming into effect of a contract is admissible. This was considered in the case of: Ghai v
Mandal Facts: This case concerned a post-dated cheque which the respondents gave the
appellant. The parties had agreed orally that the cheque would not be cashed until the firm for
which the respondent worked paid certain monies into his account. The firm went bankrupt and
did not pay the monies into the respondent’s account. The respondent then stopped payment of
the cheque due to lack of funds, but the appellants presented the cheque which was dishonoured
and they sued the respondent on it. The respondent tried to adduce oral evidence of the condition
that had been agreed upon, that the cheque would not be presented for payment until after his
firm had paid him. The appellants objected to the oral evidence arguing that the cheque
contained all their contract. Held: The evidence tendered in proof of the oral agreement was
admissible. It was tendered to establish that it was the intention of the parties that the cheque
wasn’t to be operative at all until after a certain event had happened. Court stated the following
principle:

“When, at the time of a written contract being entered into, it is orally agreed between the parties
that the written agreement shall not be of any force or validity until some condition precedent has
been performed, parole evidence of such oral agreement is admissible to show that the condition
had not been performed and consequently that the written contract has not become binding and
that until the condition is performed, there is in fact, no written agreement at all.”

5.             S.92 (d)- The existence of a separate and distinct, subsequent oral agreement to rescind or
modify any contract is admissible, provided it is not a contract, grant or disposition of property
which is required by law to be in writing. Ishakiya v Jusub Held: Where it is to be in writing,
then it can only be modified in writing thus the exception in s.92 (d) does not apply.

6.             S.92(e)- The existence or any usage or custom to which a particular type of contract or
transaction is usually subject, is admissible only if allowing it would not be repugnant to or
inconsistent with the express terms of a contract. Brown v Byrne Held: Evidence of custom and
usage is admissible in order to get at the true meaning of what the parties agreed on in the
document.

7.       S.92 (f) - Any fact may be proved which shows in what manner the language of the document is
related to the existing facts. This is another rule of interpretation to help court establish what the
parties intended.
8.             Ss.93-100 – contain rules for the interpretation of documents by the court, the most
important being s.93 which is in concert with ss91 and 92. It provides that where a contract is, on
its face vague, ambiguous, defective on the face of it, the court may not resort to extrinsic aids to
interpret its meaning, i.e. evidence may not be given of facts which would show its meaning. See
ss. 91-92.
9.             S.94- When the language used in the document is plain in itself and if it applies accurately to
the existing facts, evidence may not be given to show that it was not meant to apply to such facts.
Note the use of ‘may’ e.g. s. 92(a) on mistake.
10.         S.95- A document which is not meaningful. If it is plain on its face but it is not meaningful
with reference to the existing facts, evidence may be given to show that it was used in certain
terms.
12.         S.98- Evidence may be given to show the meaning of illegible or not commonly intelligible
characters of foreign, obsolete, technical, local and provincial expressions of abbreviations and
of words used in a peculiar sense.
13.         S.99- The persons who are not party to a document or their representatives in interest may
give evidence of any facts tending to show a contemporaneous agreement varying the terms of a
document e.g. where 3 parties sign an agreement.
14.         S.100- Nothing in ss.91-99 shall affect the provisions of the Succession Act as to the
construction of wills, i.e. those sections do not apply to wills.

JUDICIAL NOTICE
The common law doctrine is defined, according to the black’s law dictionary 9th edition, as a
court‘s acceptance, for purposes of conveniences and without requiring a party‘s proof, of a
well-known and disputable fact. This implies a process by which courts take cognizance or
notice of matters which clearly establish a formal evidence of their existence is unnecessary, as
well as matters of common knowledge and everyday life. Whenever a fact is clearly known, thus
every ordinary person may be reasonably presumed to be aware of it, the court notices it. In
HOLLAND V JONES, Justice Isaacs Held: “Judicial notice is a judicial short cut,” since it is
a doing away with a judicial necessity for evidence because there is no real necessity for it.

This is an exception to the rule that all facts in issue and relevant facts must be proved by
evidence, such as **section. 55-56

The basis of the court applying judicial notice: Matters that may be taken judicial notice of are
either matters of:

1. A public or universal nature which are so well known that courts will not require formal
proof thereof, OR:
2. Matters of common notoriety.

In effect, this means that the courts may take into consideration those two premises and
dispense with formal proof. However, courts may not take into account of any personal
knowledge that they may have of private matters. For that reason therefore, courts only take
judicial notice of either a public or universal nature which are well known that it would be
wastage of court’s time to require further proof of them. If a judge has private knowledge of an
admissible fact affecting a case before him, then he should disqualify himself from
presiding over that case.

*Section.56 stipulates a list of various matters of which court shall take judicial notice. Apart
from these matters, there are generally 3 broad categories of matters that a court may take
judicial notice of. These are divided into legal, constitutional and customary matters, i.e. the
list in section.56 is not exhaustive.

LEGAL MATTERS section 56 (1) (a) and (b): Ugandan courts may take judicial notice of all
Ugandan laws, as well as all laws of the UK which are in force in Uganda. In the case of
SALEH MOHAMMED v. R (1953)20 EACA 141, court Held: The correct interpretation of s.57
(1) of the Indian Evidence Act equivalent to [the then s.55 (1)] of the Ugandan Evidence Act is
that a court must take judicial notice of all ordinances and regulations enacted in Kenya. In
PHURMAN SINGH v. R (1951)1 TLR 345, Held: Court must take judicial notice of a
Government notices issued under the Defense (Controlled Produce) Regulations 1946.

R V JOSHUA s/o DANIEL (1939) 1 TLR 60 Held: Although court had to take judicial notice
of an order issued under the Tanganyika Native Authority Ordinance, this did not dispense
with the need to prove that the order had been duly promulgated in the required manner.
Apart from the above, all other foreign laws must be proved. Singh v R that dealt with the
application of Islamic law to parties in Tanzania. The question then becomes, how do you prove
foreign laws? The experts in the area of foreign law under section.44 and reliance on books and
journals on that foreign law.

CONSTITUTIONAL MATTERS: Courts may take judicial notice of constitutional matters e.g.
under s.56 (1), the existence, title and national flag of a Government. Courts may also take
judicial notice of hostilities, wars and conflicts involving Uganda which have been recognized by
the Government, i.e. if the Government acknowledges or says so. DUFF DEVELOPMENT CO.
v. KELANTAN (GOVERNMENT) (1924) 2 ALL ER 168: S.56

CUSTOMARY MATTERS; SECTION 10 of the MCA Cap. 16 and section 15 of the

judicature act Cap 13: If a particular customary law becomes so notorious, it may be judicially
noticed. In the case of ANGU v. ATTA [1916] PC 74-28,43 Held: Customary law must first be
proved by calling witnesses acquainted with the native customs, until the particular customs may
have, by frequent proof in courts become so notorious that the courts will take judicial notice of
them. KIMANI v. GIKANGA [1965] EA 735 Held: Customary law as a matter of judicial
practice has to be proved by:

a) Calling experts;
b) Adducing texts/books on those customs;
c) Calling persons acquainted.
However, customary law is not at the same level as foreign law. But we cannot presume that the
judges know all the Ugandan customs therefore these persons and evidence is admitted before
court until judicial notice can be taken of it. It must also be noted that at the time, foreign judges
presided over our courts.

S. 56(2) provides that the court may refer to appropriate books or documents in all cases listed
under s.56 (1) or on matters of public history, literature, science or art in determining whether
judicial notice should be taken. However, under s.56(3), court may refuse to take judicial notice
of a matter until the interested person produces either a book or document for court’s reference in
support of the fact.

ADMISSIONS: (Ss 16-22 UEA)

Section 16 defines an admission as a statement, oral or documentary, which suggests any

inference as to any fact in issue or relevant fact, and which is made by any of the persons, and
in the circumstances. This definition may not be conclusive. According to Phipson on
Evidence, 9th edition, p.30, defines admissions as, “...in civil cases, statements made out of
court by parties to proceedings or by parties connected to him in chapter 9 [of this book] are
admissions and they are admissible against but not in favour of such a party to prove the truth
of the facts stated.” The general rule of admissions is that they are admissible against the
party who makes them and they should not be in favour of the party who makes them.

Categories of admissions:

1. Those made in contemplation of or at the beginning of trial; These are receivable

against the maker as a waiver of proof, and when brought to the attention of the court,
judgment can be entered against the party who made the admissions or on whose behalf
they were made.
2. Those made without a view to the trial. These have to be proven by the party who
alleges that such statements were actually made. Thus, their mere presentation is
inadequate.

It is important to note that a statement containing an admission has to be tendered in full and if
the statement contains some parts which are favourable to the maker and those against his case
can therefore be used as admissions, provided that the entire document is taken into account
when analysing the evidence.

Section 28 provides that admissions are not conclusive proof of matters in question, but they
may operate as estoppels under the provisions in the Act.

Rationale for receiving admissions against a person who made them:

1. Admissions are self-harming. The presumption of the law is that no one wants to harm
himself therefore if a person made an admission against himself, then such declarations
are probably true.
2. Looking at an analogy of contradictory statements by witnesses, admissions are
received against a party, not as evidence of their truth and therefore an exception to the
hearsay rule, but merely as being inconsistent with and so, discrediting the case otherwise
set out by the party, e.g. if A owes B 10m/=, A paid 5m/=, which B acknowledged in a
letter. A may bring such letter to court to prove this. However, this will not be conclusive
evidence according to S28.
3. This is the most generally accepted rationale. A party’s declarations, whether for or
against his interests may always be taken to be true as against himself. SLATTERIE v.
POOLEY (1840) 6 M. & W 664 Held: According to Parker J, “Whatever a party says is
evidence against himself. What a party admits to be true may be presumed to be so...”

R v. TURNER [1910] 1 KB 346 emphasizes the rationale for receiving admissions as evidence.

In view of this rationale, Phipson gives the general rule on admissions: Subject to certain
exceptions, the general rule in both civil and criminal matters is that any relevant statement
made by a party is evidence against himself. The weight to be attached to each admission is a
different matter for later, but admissions are generally admissible in court. If a declaration is
made in favour of a party, then such declaration is not receivable as an admission.

BROCKLEBANK v. THOMPSON [1903] 2 CH 344, 352 Held: “No presumption of truth

arises with regard to declarations of a party or his agents when tendered as evidence in his
own favour, otherwise everyman, if he were in a difficulty or in view of one, might make
declarations to suit his own case.”

Gilbert on Evidence, 1st edition, p.122: “No man can be a witness for himself, but he is the
best witness that can be against himself.”

There are exceptions to the general rule as regards who can make admissions, i.e. that other
persons (other than parties to the suit) which statements bind parties to the suit as admissions.

S.17 UEA provides that statements made by a party to the proceedings, or by an agent of any
such party whom the court regards in the circumstances of a case as expressly or impliedly
authorised by him to make them, are admissions. Before such a statement is receivable in court,
the relationship of agent-principle must first be proven or established. In the CPR (See Order 3),
there are authorised agents e.g. advocates or people with powers of attorney or otherwise
authorised. However, if such evidence is already there, it does not have to be proven. E.g. if one
is a lawyer, it is automatic that s/he is the client’s agent; powers of attorney duly signed,
registered and presented to court are evidence of one being another’s agent.
 According to Order 1 CPR, a person can write a letter authorising another (co-plaintiff or co-
defendant) to conduct the matter on his behalf. In doing so, such a person is not an agent in the
strict sense of S 17; they are merely representatives. It really all depends on the wording of the
letter. If one says you will be an agent according to S 17, so will you be. However, if not, you’re
just a representative. The agent must be impliedly or expressly made such.

S17 also refers to statements made by parties to suits suing or being sued in a representative
character. These are not admissions unless they were made while the party making them held
that character of representative. The section also refers to persons with proprietary or pecuniary
interest in the subject matter of the proceedings and who make the statement in the character of
persons so interested, e.g. where partners in a business if one of the partners makes an admission,
it will bind the rest...co-shareholders, co-defendants, etc.

Prerequisites:

a. The admitting party must be in the capacity that links him to the suit when making the
admission, e.g. you must still be in partnership for your statement to bind the co-
partners;
b. S 17 also speaks of persons from whom the parties to the suit have derived their interest
in the subject matter of the suit (e.g. in administration of the deceased’s estate,
statements by the deceased are admissible against the estate administrator, a tenant,
transferee of land, statements of the seller can also be used against the transferee).
c. General qualifications are made at the end of S 17, i.e. admissions are such if they are
made during the continuance of the interest of the persons making the statements, e.g.

a)      Tenant and seller; the statement by the seller must have been made while the seller was still
owner, in order for it to amount to an admission;

b)      If the defendant made a statement before he became owner of the land in question, the
statement cannot be admitted as against the administrator of his estate.

Admissions by persons whose positions must be proved against party to the suit (S18UEA)

Statements made by persons whose position or liability it is necessary to prove as against any
party to the suit are admissions, if those statements would be relevant as against those persons in
relation to such position or liability in a suit brought by or against them, and if they are made
while the person making them occupies such position or is subject to such liability.

Example: A borrows money from bank B and C guarantees that should A fail, C will pay. A
fails to pay and B sues both A and C and at B’s option, B may choose to sue C only depending
on their obligations. To prove the debt against the guarantor, you must prove the debt against A
(principal debtor), i.e. because they are jointly and severally liable. Statements made by A are
admissible as against C.

Admissions by persons expressly referred to by party to the suit (S 20)

Statements made by persons to whom a party to the suit has expressly referred to for information
in reference to a matter in dispute are admissions. (If you’re party to a suit, A sues B who says
the 10m/= is not due, even C knows that it is not due, C goes to court, acknowledges these truths
and says 10m/= is due, that will be taken as an admission as against B referred to C as a person
who knows.)

Exceptions to the rule that admissions should be made against the maker (i.e. where one can
be a witness for themselves)

a. If the statements are made in the presence of the adversary party and are not
denied by him, then they can be used as admissions and to support the case of the
maker. (The presumption of the law is that whatever is in the affidavit has been
accepted by the adversary);
b. If the law allows it (by statute) e.g. in taxation law, assessment of tax is made
basing on returns paid by the tax payer. That can be used as evidence by the
taxpayer in case s/he is challenged, the tax records can be used as evidence in
court for themselves.
c. If it is in the case of public accounts, they can be presented by the public officers
concerned. See Ss 73-77
d. If the statements are contemporaneous writings, e.g. those used to refresh one’s
memory (for instance in a meeting), those can be used by a party for themselves;
e. Where the statements are not tendered as evidence but they are brought as original
documents of record or if they are part of the res gestae, if they are proving acts
of ownership or if they are showing good faith. For example statements of
account from business, bank statements, etc. It is known that good faith is really a
statement of mind, so are matters of fraud, therefore those documents can reveal
whether or not one was fraudulent. On questions of ownership, the documents
involved can be used to show this, e.g. letters between tenants, receipts, etc.

When and to whom admissions may be made:

The principle rule is that when one is a party to a case, whether he’s suing or being sued
personally, any admission made by him on a former occasion is admissible and can be used
against him. According to case law, this includes statements made while someone was a minor.
O’Neil v Read 7 Ir.L.R 434 There are, however, qualifications to this. See Phipson on
Evidence, p.432; Halsbury’s Laws of England (on admissions).

Statements made when someone is acting in representative capacity are also admissions, save
that those made after a character exists are not admissions against the other parties to the suit.
See S 17& Trustees v Hunting [1897] 1 QB 611

It is immaterial to whom admissions are made, therefore, even statements made to strangers are
receivable as admissions. Admissions made to oneself are merely soliloquy. See R v Simons.

Even admissions made to a legal advisor or a wife are receivable if proved by a third party. The
rationale is that the legal advisor or wife wouldn’t readily admit, but if a third party’s word
showed, then they are receivable.

On the other hand, lawyers’ admissions, in order to bind their clients must have been made
specifically to the adversary party and admissions made to support the case of a creditor should
also have been made to the creditor. They shouldn’t be statements made to people who are privy
to the creditor-debtor contract. (That does not take out admissions made to the debtor’s agents,
which are definitely admissible.)

Circumstances in which admissions are made (Are they relevant?)

The weight of admissions depends on circumstances under which they were made. S20 gives the
process of proving admissions made by persons themselves or on their behalf. As a pre-
condition, there are specific instances where admissions can be considered by the court and be
provable against the person who makes them, or his representative in interest.

S 20 provides that an admission may be proved by or on behalf of a person making it if such an

admission would have been relevant between third parties if such person who made it had died.
The section makes reference to S30 which deals with people who cannot be called as witnesses,
including dead people. S 20 also provides that such statements can also be proved when they
consist of a statement which refers to the existence of any state of mind or body relevant, or in
issue when that statement was made at a time when the state of mind or body existed and
following which, certain events or conduct occurred which bring the statement’s truthfulness in
doubt. For example, if there were letters showing one’s insanity and later, the person acts sanely,
later those documents can be admitted to prove that one was sane.

The section also provides that such statements are provable if they are relevant in any other way
than by way of admissions. Common law has added more exceptions to the rule that one is not
required to prove admissions made by them. Admissions, unless amounting to estoppels, can be
challenged by the party against whom they are brought in evidence as being untrue.

Instances which may water down the weight of an admission

 a) If one proves that there was a mistake of either fact or law;
b) Proof that one uttered the admission in ignorance, levity or an abnormal condition of
mind. See R v Hedges 3 Cr. App. R 262 On the other hand, the weight of an admission
increases with the knowledge and deliberation. For example the words of a Law
Professor and those of an auctioneer. See R v McGregor. The solemnity of an occasion
on which a statement was made also matters.

Admissions made conditionally are receivable in evidence if the condition is fulfilled, but not
otherwise. In the same way, if an admission is made when the maker has in his mind a particular
hypothesis of facts.

Powell v McGlynn 1902 Ir.L.R 154

Offers “without prejudice”

Offers of compromise made without prejudice expressly or impliedly cannot be admitted in

evidence as admissions. The term “without prejudice” acts as a sort of exclusion clause to excuse
the letter writer from liability from something, as long as it was written “without prejudice” for
example in a lawsuit where a lawyer agrees with his client that at 100m/= he can drop the suit yet
they can continue at 180m/= and later the suit breaks down, the lawyer can write such letter.

Offers may be taken to have been written “without prejudice” even when it is not expressly
stated. See Oliver v Nautilus Co. [1903]2 KB 639. These are offers especially showing that a
party was making a bonafide attempt to settle without a dispute. It will be taken as such even if it
was not expressly stated as such. For example, if you agree to settle a dispute outside of court at
a certain amount, it doesn’t mean that one is banned from suing another.

Even if the statement won’t be received as an admission, the fact (of the existence of the letter)
and date of the letter are admissible, to prove elements like delay, unreasonable conduct.

Walker v Wilsher 23 QBD 335 (Court of Appeal decision)

Stotesbury v Turner [1943] KB 370

For an offer to amount to one “without prejudice” apart from that statement in the letter or its
being adducible from the construction of the statement, there are certain pre-conditions which
must be fulfilled:

1.    There has to be a dispute or negotiations between parties and the statement must have been
written bonafide to settle that dispute. Re Daintrey exparte Holt [1893] 2 QB 116. E.g where
people write, “private and confidential” meant to be inter-parties, if it contains threats or other
statements not in line with a settlement or resolution of the conflict, it can be brought as evidence
of those other elements. Watt v Watt 1905 AC 115
2.    If the alternative to accept what was written was the committal of an act of bankruptcy, then the
letter may be admitted to prove that act, e.g. hiding away from your creditors in an act of
bankruptcy (keeping house). If the debtor writes a letter to his creditors “without prejudice” and
the creditor accepts, court will consider that the debtor is saved from liability. However, if the
creditor refuses, whether or not the words “without prejudice” were written, the debtor will be
liable and considered to have committed an act of bankruptcy. See Re Daintrey (supra)

3.    If independent facts were admitted during the negotiations, such independent facts are
admissible as admissions even if a letter without prejudice follows. Also, if an offer without
prejudice has been accepted by the adversary or if the protected condition has been fulfilled, then
the letter without prejudice will be taken as an admission.

4.    A notice “without prejudice” to annul a sale following failed acceptance of a given condition is
void and unacceptable. (E.g. if one fails to fulfil their side of the contract and gives notice, then
tries to turn around and say they didn’t, claiming it was written without prejudice, then you’re
estopped). Re Weston [1907]1 Ch 244

5.    Criminal libel “without prejudice” is receivable in evidence. The rationale is to avoid people
hiding under this cover to defame others. Stretton v Stubbs [1905] ALLER

6.    Letters “without prejudice” are brought as admissions if they are used in a different action than
the dispute which was being settled and also, if they are used by third parties (e.g. if there are
negotiations between two people and it contains relevant facts in another case concerning
different people, not you, then the court will admit it for purposes of proof or evidence in that
other case). The protection applies only in the same action and between them and the third
parties. Thus, third parties can rely on offers without prejudice.

7.    Letters or negotiations between lawyers are inadmissible as against themselves as well as
against their clients. La Roche v Armstrong [1922] 1 KB 485

Admissions made under compulsion or coercion

In a civil trial, there is legal compulsion and an admission made under compulsion is admissible
e.g. a witness may answer to interrogatories and the evidence got out of the interrogatories would
be admissible both in the case where the interrogatories have been conducted and in subsequent
civil trials. This also applies to admissions made during testimony where the speaker or his
lawyer had objected to the question being asked or the answer given by the speaker at the time
might have been irrelevant or the witness was prevented from fully explaining the statement. All
this notwithstanding, the statement can be used at a future trial as an admission.

When admitting statements, the whole statement must be taken, including hearsay and opinion
evidence. Shariff & another v Sethna & others. It must be noted though that the general rule
on weighting of hearsay evidence is that it is not admissible.
An admission is receivable when founded on hearsay although its weight will be very slight. This
applies to admissions based on the party’s declaration of opinion or belief. But where the
admission is a mere inference from facts not personally known to the declarant, the court may
disregard the inference and look to the facts. A bare statement that a party is informed without
the addition of his or her belief in the information will not amount to an admission.

The Form of admissions Admissions may take on many forms, e.g. affidavits, which must first
qualify as an admission before being accepted as evidence. It is immaterial what form
admissions are made in, therefore, they can be made by way of affidavits or even answers to
interrogatories.

Re Cohen [1924] 2 Ch 515 Held: Admissions can be declarations in wills (See Re Hoyle [1894]
1 Ch 34), recitals and descriptions in agreements, receipts, accounts, passbooks, maps, etc. With
regard to pleadings, unless they are sworn e.g. affidavits , or adopted in future proceedings, they
aren’t admissions and even judgments in previous cases are not admissions of facts.

Matters provable by admissions=Admissions can prove both law and facts, or a mixture of
both. However, admissions which tend to prove law or a mixture of law and fact will have very
little weight unless they amount to estoppel.
In cases of adultery, the burden of proof is ordinarily high, however, the admission of adultery,
although uncorroborated, has been held to be sufficient evidence where it is considered
trustworthy e.g. where it is seen as having been made to obtain forgiveness as opposed to
obtaining a divorce. See Robinson v Robinson

Admissions from documents; Unless excluded by the Evidence Act, a party’s admissions out of
court being primary evidence against him are receivable to prove the contents of a document
without notice to produce or explain the absence of the originals of such documents. Similarly,
oral admissions as to the contents of such a document may be relevant in certain situations. S 21
The above is based on the general rule of parole evidence that documentary evidence is the best,
i.e. it speaks for itself therefore there is no need for one to prove the contents of the documents
when they are clear.

Instances of admissibility of oral evidence

a. Where one is required to give secondary evidence (S21) and where one is entitled
under S62 (See also Ss 60 & 69)
b. Where an admission is made in attestation of a document. See S 69
 c. If the genuineness of the document produced is in question (S21) e.g. if the other
party challenges the genuineness of the contents of the title, if either party ever
made an oral statement concerning that document, such can be used as an
admission, and therefore evidence against him or her. Although the contents of a
document may be proved in that fashion, they cannot be varied or contradicted in
that manner. See Doe v Webster

See S22. An admission made under an express condition or intention that it should not be
allowed in evidence or if from the circumstances of the case, the parties agreed as such, then it
should not be admitted as evidence.
Ambiguous admissions; Where the facts admitted are capable of 2 different interpretations, both
of which being equally possible, it will then be up to the court to decide which of the two
meanings is taken.

Davey v London & South Railway 12 QBD 70, 76

Transami v Roadmaster Cycles

Held: Arach J- For Court to give judgement for an admission, under Order 11 CPR, the
admission must be unequivocal.

*CONFESSIONS
The Uganda Evidence Act does not define confessions nor does the Interpretation Act. However,
one can borrow the definition of the Kenyan Evidence Act which envisages that confessions
comprise of words or conduct or a combination of words and conduct from which whether
taken alone or in connection with other words lead to an inference that may reasonably be d

rawn that the party making the confession has committed an offence.

The procedure for recording confessions

One may ask a question that; to whom and how the confession is made? According to section 23
(1) (a), (b) and *(2)of the Evidence Act, no confession made by any person while he or she is
in the custody of the police shall be proved against any such person unless it is made in the
immediate presence of a police officer of or above the rank of Assistant Inspector or a
magistrate. The section goes ahead to provide that no person shall be convicted of an offence
solely on the basis of a confession unless the confession is corroborated by other material
evidence in support of the confession implicating that person.

The procedure for recording confessions * section 23 (2) is found in the Evidence (Statement
to Police Officers) Rules and case law. The procedure for magistrates is illustrated in the
case of UGANDA v. DOYI WABWIRE KYOYO (1976) HCB 213. Justice Sekandi laid down
the following procedure.

1. When an accused person or a suspect is brought to a magistrate the magistrate

should ensure that the police or prisons officer escorting the accused leaves the
chambers.
2. The magistrate should ask his court clerk to sit in the chambers with him so as to
guard against unnecessary allegations and to act as an interpreter where necessary.
3. The Magistrate should use court paper in recording any statement from the
accused.
4. The accused should be informed of the charge against him if in fact he has been
charged. If he has not been charged before, the magistrate should inform him of
the allegations brought by the police as clearly as possible so that the accused is
in no doubt as to the nature of the charge which he is likely to face and upon
which the statement is likely to be adduced as evidence at the trial.
5. Immediately upon being informed of the charge, the magistrate should caution
the accused in the following terms: “You need not say anything unless you wish but
whatever you do say will be taken down in writing and may be given in evidence”
6. Then the accused should be informed that he has nothing to fear or hope for in
making a statement before the magistrate.
7. If the accused volunteers, a statement then should be recorded in the language used
by the accused and English translation made of it. Both statements should be read
back to the accused that should signify his agreement with the contents with his
signature or thumb mark. Then the magistrate should countersign both
statements and date them.

According to the case of NJUGUNA & OTHERS v. R ( 1954) 21 EACA 316 it was held that it
is inadvisable if not improper for the police officer who is conducting the investigation of the
case, to charge and record the cautioned statement of the accused. According to the case of
UGANDA v. KALEMA & ANOTHER (1974) HCB) 142, it is clearly indicated that such a
section means that the accused should appear before an impartial person who knew nothing
about the background of the case. This means that the courts have to be on their guard to see that
the purpose of the exercise was not defeated by backdoor practices. The accused was
interrogated by a police officer who briefed the magistrate and here the magistrate could not be
regarded as an impartial person.

Therefore, it is relevant to note that confessions have several ingredients; these have been spelt
out by court in different cases. Furthermore, in Uganda section. 24, stipulates that: a confession
is irrelevant if it appears to court that having regard to the state of mind of the accused in all
circumstances surrounding it, the accused made it out of violence, force or threat, inducement
or promise calculated in the opinion of the court to cause an untrue confession. In PAKALA
NARAYANA SWAMI v. THE KING EMPEROR [1939] 1 ALL ER 396, in this case, LORD
ATKIN observed that:

“A confession must either admit in terms the offence, or at any rate substantially all the facts
which constitute the offence. An admission of a gravely incriminating fact, even a
conclusively incriminating fact, is not in itself a confession, for example, an admission that
the accused is the owner of and was in recent possession of the knife or revolver which caused
death with no explanation of any other man’s possession.”

The same decision was upheld in UGANDA v. YOSAMU MUTAHANZO (1988-90) HCB 4;
court held that a confession connotes an unequivocal admission of having committed an act in
law that amounts to a crime and must either admit in terms the offence or at any rate
substantially all the facts which constitute the offence. The accused’s extra judicial statement
was an exculpatory statement in the sense that the 4 accused threw blame on the accused and his
statement could not amount to a proper confession. Instead of being convicted for murder the
accused was convicted for manslaughter.

An admission that is gravely incriminating or even conclusively incriminating fact is not in

itself a confession. If an accused admits that he is responsible for the murder of someone, this
does not insinuate that he has confessed to the murder of the deceased. Therein, in UGANDA v.
LAKOT (1986) HCB 27, it was held that the confession was equivocal since the accused
admitted to having assaulted the complainant but went ahead to explain why he did so. Thus
in my argument a confession must be an unequivocal admission of having committed an act
which in law amounts to a crime and must either admit in terms the offence or at any rate
substantially all the facts which constitute an offence.

In GOPA & OTHERS v. R (1953)20 EACA 318, it was stated that the accused’s extra judicial
statement was exculpatory in the sense that it explained the act of stabbing and therefore the
blame on the deceased person; the Judge said that a confession is a direct acknowledgement of
guilt on the part of the accused which is sufficient to convict him. The judge held that
although an extrajudicial statement contains self exculpatory matter it can still be a
confession if the self exculpatory matter does not negative the offence alleged to be charged.
It is important to note that this is different from admissions. An admission may be equivocal as
long as it contains matters relating to the liability of the maker.

*Self Exculpatory Matters; the definition is in Swami v The Emperor. It is clearly indicated
that it is a matter adopted or intended to free the maker from blame for the act admitted in the
confession.

*The other ingredient is that a confession must be admitted as a whole; this was discussed in
the case of UGANDA v. SEBUGUZI & OTHERS (1988-1990) HCB 18, here it clearly stated
that as regards the value of a confession against the maker it is trite law that a confession should
be taken as a whole sine it was open to the trial judge to accept part or reject the whole of it.

***RETRACTION AND REPUDIATED OF CONFESSIONS;

An accused person can retract or repudiate a confession. A retracted confession occurs when an
accused makes a statement or a confession which he later seeks to take back on the ground that
he either made it out of mistake or did not do it voluntarily. Sections 24, 25 and 27, 26 should be
read together on this. An accused person may retract a confession in two ways:-

a. By clear and positive express repudiation.

b. By implication.
In the case of *TUWAMOI v. UGANDA (1967) EA 84, the court said that there is no clear
distinction between repudiated and retracted confessions and for any of them to be accepted by
court it should be done with great caution and the court should first satisfy itself that all
circumstances surrounding the confession do not negative it. To amount to a retracted
confession the accused person admits having made the statement recorded but he later wishes to
take it back on the ground that it was made involuntarily whereas a repudiated confession is a
statement which the accused person avers he never made.

In the case of *UGANDA v. NAMWANJE (CRIMINAL SESSION CASE NO. 100 OF 2011)
[2014] UGHCCRD 87 (26 MARCH 2014); court stipulated that a retracted confession is weak
evidence which has to be corroborated by independent evidence. If the Court is inclined to rely
on such evidence, the Court must give good reasons why it has done so; usually it would suffice
if Court fined the witness truthful. However, in the case of SEWANKAMBO FRANCIS & 2
ORS v. UGANDA, S.C.C.A. NO. 33/01 , the Supreme Court while considering the position of
law pertaining to retracted confession held that “the trial Judge does not even need to look
for corroboration and can legally convict on the uncorroborated repudiated/retracted
confessions provided that he is satisfied that in all the circumstances, the confession is true.
This point was stated in the authoritative case of TUWAMOI v. UGANDA (1967) EA, 84, AT
91 which is still good law."

What happens when someone has retracted or when the accused denies the confession or
challenges its admissibility? If the confession is denied by the accused person then *the trial
judge should conduct a trial within a trial . This is emphasized in MAJOR JOHN KAZOORA
v. UGANDA (1994) 1 KALR 143. The purpose of the trial within a trial is to decide upon the
evidence of both sides as to whether the confession should be admitted. Court cannot by simply
looking at the statement conclude that it was made voluntarily. A statement that is made
voluntarily is one made absolutely free from inducement influence of whatever nature.
In the case of COMMISSIONER OF CUSTOMS AND EXCISE v. HARZ & OTHERS (1967)
1 ALL ER 172, the court held that it is true that many of the so-called inducements have been so
vague that no reasonable man would have been influenced by them, but one must note that not
all accused persons are reasonable men and women. Therefore, a statement made involuntarily
is inadmissible. In BINUGE & OTHERS v. UGANDA (1992-93) HCB 29, the court held that
the 1st appellant was prejudiced when his objection to the admissibility of his extra judicial
statement was summarily dismissed by the trial judge. It was held that when the admissibility of
an extrajudicial statement is challenged, then the objecting accused must be given chance,
to establish by evidence, his grounds of objection through a trial within a trial.

**Section 25 UEA gives an exception to the general rule of involuntariness. The confessions
referred to in section 24 if made after the impression caused by any such inducement, threat or
promise has in the opinion of the court been fully removed, then it is irrelevant. In R v. SMITH
(1959) 2 ALL ER 193; Facts: There had been a fight between persons of two companies and one
of them was stabbed to death. On the same day the police put members of the company on
parade and while interviewing them a police officer made a statement to one of the accused
persons that, “I am not leaving; I am staying until you give me an answer to this fight”. After
saying this the accused confessed that he was the one who stabbed the deceased and the
following day police referred to that statement made by the accused and asked him whether he
wanted to make a confession about it. He was cautioned and he made a written confession. He
was convicted and made an appeal. The court of Appeal held that the words were threats i.e. on
the previous day and the confession was inadmissible. On the following day the first threat was
operating on the accused’s mind and the confession was inadmissible.

According to DAU v. R (1962) EA 9 the effect is that if the original inducement or threat has
disappeared then a later confession is admissible. Facts: A mother left the girl with the appellant.
When her mother returned, the child had disappeared. The next day the girl was found drowned
in a river and the medical evidence showed that she had been interfered with sexually. The
appellant was arrested and three days later taken by police sergeant to the river. Without
charging or cautioning him the policeman asked the appellant to point out where he had pushed
the deceased into the river. The appellant said it was where people draw water. The next day the
sergeant said to the appellant “You are going to say what you told me yesterday but I am not
going to force you to do so”. Issue: Whether the sergeant’s words constituted a threat?

Held: The words “You are going to say what you told me yesterday…” did not constitute an
order or threat in the mind of the appellant as they were tempered by words which
followed and any possible effect they might still have had on the appellant would have
disappeared by the words of caution which followed.

Thus where a magistrate or police officer takes a special precaution before taking a
statement the lapse of time between the previous inducement and the taking of the
statement and the lack of any allegation by the accused person that there was any threat or
inducement at a later stage after the caution is given, the confession is admissible. See R v
Nanta (1944)11 EACA 83 and section 25 of the evidence act.

In R v. KENGO & ANOTHER (1930) 10 EACA 123, the accused made a statement before a
magistrate and confessed the murder but during the trial he made an unsworn statement in which
he denied the previous statement, he said he had only heard from someone else that the deceased
had died. The general rule regarding repudiated and retracted confessions is that the
confessions are admissible in evidence provided the court is satisfied that the confession was
made voluntarily.

In addition in ZENON ZAVURU (1993-1993) HCB 7, the Court of Appeal stated that once the
appellant had repudiated the confession the trial judge ought to have directed himself and
the assessors to the effect that court had to accept a confession with caution and had to be
satisfied that in all circumstances of the case the confession was true.

THE EFFECT OF INDUCEMENTS AND THREATS

This is governed by Section 24 of the Evidence Act. The section is to the effect that the
confession made by an accused person is irrelevant if taking into account the state of mind and
the circumstances surrounding the confession - it was caused by violence, threats, force,
inducement or promise calculated in the opinion of the court to cause an untrue confession. It is
important to note the salient elements referred to in the section.

1. The court has to consider the state of mind of the accused during the time the alleged
confession was made. It is therefore mandatory that when the accused person alleges
that he made the confession in any of the circumstances mentioned by the section then
the court should make a finding as to whether the accused person voluntarily made the
confession therefore the state of mind of the accused has to be clearly stated. This is in
line with the position in the case of EMMANUEL NSUBUGA v. UGANDA (1992-1993)
HCB 24.
2. The circumstances in which a confession was made have to investigate to find out
whether such circumstances amount to any of the aspects mentioned in the section. It is
important to note that although the section appears to say that both the state of mind and
the circumstances have to be looked at proof of the items indicated in the section by any
of the two means would suffice.
3. The Violence, force, threat, inducement or promise must be of a nature calculated in
the opinion of the court to cause the making of an untrue confession. It must have been
made to a person in authority such as a police officer or magistrate. The nature must be
relating to the commission of an offence according to case of R v. NORAHMA 9KLR 12.
 The onus of proving threats, violence, inducement or force lies with the person alleging
such.

Section 24 reflects the position which was taken in the case of: UGANDA v. WABWIRE (1976)
212: Facts: The accused was charged with murder and the prosecution sought to produce a
confession statement allegedly made by him on 16 th October 1975 to a magistrate Grade 11 at
Iganga. At the commencement of the trial Counsel for the accused intimated that he intended to
challenge the confession statement and so the trial Judge ordered a trial within a trial to be held.
During the trial within a trial the Magistrate Grade 11 (PW4), the only witness called by the
prosecution during this trial, testified that the accused was brought to his Chambers at Iganga
Court by a police Constable for purposes of making a statement.
Held: The magistrate cautioned the accused in the following terms: “If you have been forced or
threatened or induced in any way by the police to come here and make this statement you should
say so. But whatever you will say shall be recorded down and may be brought as evidence at
your trial at the High Court.” The accused told the Magistrate that he had not been forced and
wished to make a statement voluntarily. A statement was then recorded in the language of the
accused; it was read back to him and he said it was true and correct. A translation was made in
English and the accused thumb marked both statements and the Magistrate countersigned them.

On Cross examination, when it was suggested to the magistrate that the caution administered
was improper and that the accused had not volunteered the statement as he had been beaten prior
to being taken to him, he (the magistrate) said he did not know what happened to the accused
prior to being brought before him but as far as he could see the accused was normal and fit. He
did not complain of any beating or threat.

The accused, who gave sworn evidence, said that he had been arrested on 8 th October 1975 and
kept in Police custody until 16th October 1975 when he was taken to the court to make a
statement. During that time he was subjected to interrogations and merciless beatings (he showed
court some scars to substantiate these allegations) and was told to admit having killed the
deceased. Before he was taken to the magistrate he was told to admit or else he would face
further beatings. The statement he made was untrue and it was because he feared the police
beatings that he made a confession; he made it out of fear for his life.

Counsel for the state submitted that even if the allegations of the accused that he was beaten
were true, that was not enough to exclude the statement; the accused must prove that the beatings
and the threats were intended to cause an untrue confession to be made.

Court held as follows interalia:

1. Once a confession is properly recorded it is prima facie admissible. However, the accused
is entitled to challenge such a statement if prior to being made he was induced to make or
made it through fear or threats or through promises and under section 24 of the
 Evidence Act. It is for the prosecution to prove beyond reasonable doubt that a
confession is voluntary and the accused need only raise objections to it for there is no
requirement in law that he must prove his allegations of threats or promises.
2. Where the defence challenges a confession a trial within a trial is held and it is during this
trial within a trial that the prosecution must adduce all the evidence relied upon to prove
the voluntary nature of the statement. The prosecution must therefore call witnesses for
purposes of proof and witnesses who have testified before or who might be called later
must be called for the purpose of proving the statement if their evidence is relevant and in
fact for purposes of the trial within a trial any witness whether on the summary of
evidence or not is relevant. The accused is then entitled to give evidence on oath or not
on oath and to call witnesses if any.
3. In a trial within a trial the evidence must be complete by itself but the evidence in the
main trial is not before the court at that stage and although it may be looked at, it cannot
be relied upon to the prejudice of an accused.
4. In the instant case, the prosecution did not comply with the standard procedure in proving
the alleged confession for they did not lay before court all the evidence that as necessary
for it to decide on the issue of admissibility of the confession. The prosecution called
only the magistrate as a witness for purposes of proving the alleged confession yet the
accused made damaging allegations of brutal beatings against the police in his sworn
evidence and showed the court some scars to substantiate these allegations. Since the
prosecution did not call anybody from police to deny these allegations it was extremely
difficult to assume that the accused had lied against the police.
5. The accused in instant case, ought to have been charged and taken to court as soon as he
was arrested and in the absence of police evidence denying the accused’s allegations of
long interrogations, beatings and threats by the police it could not be said with certainty
that these allegations were without merit, which doubt in the circumstances of the case
and the evidence before court would be resolved in favour of the accused.
6. The confession was inadmissible since it was made as a result of threats.
7. A confession is generally received by court with caution because the motive of the person
making such confession is often not clear; it is doubtful whether the legislature intended
to enact that the end justifies the means when in section 24 maximum safeguards were
made against extracting confessions made by use of force.

The exception to section 24 is found in section 26 of the Evidence Act. Under section 26
confessions otherwise relevant do not become irrelevant because of promise of secrecy,
deception, drunkenness or failure to be warned that such a person was not bound to make a
confession. According to the case of Mwangi v R (1954) EA 377 the general principle is that
the court must have regard to the state of mind of the accused and all circumstances of the
case in admitting confessions.
***Confession Against Co-accused (section 27 Evidence Act)
Under section 27; “when more persons than one are being tried jointly for the same offence,
and a confession made by one of those persons affecting him or her and some other of those
persons is proved, the court may take into consideration such confession as against that other
person as well as the person who makes the confession”. Under this section the general rule is
that an accused person’s confession can be used against his co accused.

However, there are exceptions to the rule in section 27. According to the case of NSUBUGA
v. UGANDA if the statement intends to exonerate its maker and implicates the co accused then
the weight attached to it is very small. In the case of ABDU KASUJJA v. UGANDA
CRIMINAL APPEAL 596 OF 1964 Justice Keating said that a confession by an accused
person can be used as a basis of the prosecution’s evidence against the co accused however such
evidence needs corroboration and the accused must implicate himself to the same extent he is
implicating the other and he should be exposing himself by making such a confession to the
same risk or even greater risk than the others.

UGANDA v. SEBUGUZI & OTHERS (1988-1990) HCB 18

Facts: The three accused were indicted with murder of the father of A1. In this case all the
evidence of the 7 prosecution witnesses was admitted including an extra judicial statement
recorded from A1 by a grade 11 magistrate who was also a witness for the prosecution. The extra
judicial statement produced as an exhibit at the trial contained the gist of all the prosecutions’
evidence of five witnesses called to testify in court. PW1 a son of the deceased and brother to A1
testified that his brother (A1)who had been staying with A2 moved to the deceased’s house in
December 1984 but soon thereafter started selling the deceased’s property as a result of which a
report of the theft was made to the police before whom A1 admitted the sales. Later, the
disappearance of the deceased was reported to the Chiefs who convened a meeting at which A1
stated that his father had gone to Bukakata and he was asked by the gathering to bring proof of
this statement on an appointed day. A1 never turned up on the appointed day but later turned up
alleging that his father had given him authority to look after his house. He was taken to the Sub
county Chief before whom he denied the whereabouts of his father. The search for the deceased
started in June 1988, A1 who had in the meantime disappeared from the village reappeared and
was taken to police before he admitted killing the deceased together with A2 and A3. Through
A1’s direction the body of the deceased was dug up from where it had been buried.

In the meantime co accused 2(A2) was arrested. Other evidence was of a land dispute between
the deceased and A2&A3, evidence of the police officer in charge of the case who on top of
arranging the exhumation of the deceased, arranged for medical examination by a doctor and
recording of A1’S extrajudicial statement before a grade 11 magistrate. Medical examination
revealed a fracture of the scale ones and a large crack extending to occipital bones. The cause of
death was bleeding to brain damage.
The extrajudicial statement was in the nature of a confession in which A1 narrated how he got
involved in the plot to kill his father. It started he said, when he moved to live in the house of A2
as a paying guest as his father was mistreating him. When staying with A2, he was told by A2
about the land already mentioned and of the previous unsuccessful attempts to kill the deceased
by A2 &A3 and that he agreed to facilitate the death of his father by A2&A3. That this happened
on one evening when he was digging in his father’s garden where A2 dug a pit and when the
deceased came at about 7.pm to check on his work A2&A3 who were hiding nearby jumped out;
A3 caught the deceased while A2 seized the hoe from A1 and hit the deceased with it twice on
the head. The deceased was pushed into the pit and buried.

A1’S statement was a denial of involvement in the crime and an explanation of how some
properties of the deceased came to be in his house.

During submissions Counsel for A2&A3 argued that the evidence of the extrajudicial statement
needed corroboration or support by independent evidence.

Held: It was held inter alia:-

1. ****Although a confession of a co accused could be taken into consideration against a

fellow accused person, this being of the weakest kind, could only be used as lending
assurance to other evidence but could not be used to form the basis of the case against
another accused. The reason for considering such evidence as the evidence of the weakest
kind was that it was not only hearsay, but it was evidence of such a nature that the co
accused couldn’t test in cross-examination of the maker against him.
2. Credible and independent evidence was required to support such a confession.
3. As regards the value of a confession against the maker, it is trite law that a confession
should be taken as a whole it was also clear law that it needed not to be believed as a
whole or disbelieved as a whole. It was open to the trial judge to accept part of the
statement and reject all of it. A1 was found guilty while A2&A3 not found guilty.

In the case of GOPA & OTHERS v. R (1953) 20 EACA 318 it was held that the weight of
evidence of a confession by an accused against co accused is lessened where he obviously
intends to implicate his co accused and not himself although actually he does fully implicate
himself.