evidence has been defined, to

mean
something legally submitted to
a tribunal to ascertain the truth
1
of a matter. Similarly, it
has been defined as any species
of proof, or probative matter,
legally presented at the
trail of an issue, by an act of the
parties and through the medium
of witnesses, records,
documents, objects, exhibits
2
and concrete objects.
evidence has been defined, to
mean
1
something legally submitted to
a tribunal to ascertain the truth
1
of a matter. Similarly, it
has been defined as any species
of proof, or probative matter,
legally presented at the
trail of an issue, by an act of the
parties and through the medium
of witnesses, records,
documents, objects, exhibits
2
and concrete objects.
evidence has been defined, to
mean

2
something legally submitted to
a tribunal to ascertain the truth
1
of a matter. Similarly, it
has been defined as any species
of proof, or probative matter,
legally presented at the
trail of an issue, by an act of the
parties and through the medium
of witnesses, records,
documents, objects, exhibits
2
and concrete objects.
evidence has been defined, to
mean

3
something legally submitted to
a tribunal to ascertain the truth
1
of a matter. Similarly, it
has been defined as any species
of proof, or probative matter,
legally presented at the
trail of an issue, by an act of the
parties and through the medium
of witnesses, records,
documents, objects, exhibits
2
and concrete objects.
Evidence has been defined as any species of proof, or probative matter, legally presented at the
trail of an issue, by an act of the parties and through the medium of witnesses, records,
documents, objects, exhibits and concrete objects. 1 The objective of this academic writing is to
discuss the admissibility of character evidence in line with civil and criminal matters.

Character evidence is defined as evidence regarding someone’s general personality traits or

propensities. In all cases in which evidence of character or a trait of character of a person is

1
Cross & Wilkins & Tapper 1986 Outline of the Law of Evidence 6th Edition London: Butterworths

4
admissible, proof may be made by testimony as to reputation or by testimony in form of an
opinion.2

Evidence of the reputation for truthfulness of a witness may be given in both civil and criminal
cases. Evidence about character may be relevant in either a civil or criminal trial in two ways.
First, it may be relevant to an issue. For example, in a criminal trial for theft it would be relevant
to show that the defendant had a reputation for honesty and had never been convicted before of
any criminal offence. The purpose of proving this would be to try to establish that the defendant
was not a person likely to commit theft and that the allegation was therefore likely to be untrue.
Evidence of good character could similarly be called for a plaintiff in a civil action for
defamation where justification had been pleaded as a defence. Secondly, evidence of character
may be relevant to credibility. 3 The theory a relic from earlier centuries remains that a conviction
for any offence is, in principle, relevant to credibility because of what it is supposed to reveal
about the moral character of the person testifying. Subject to some exceptions, any witness
testifying in any case may be cross examined about his bad character.

CHARACTER EVIDENCE IN CIVIL MATTERS

Evidence of character is generally admissible, in civil cases, where character is in issue.

Examples include, defamation cases (character may be necessary to justify a defence of
justification or fair comment), matrimonial cases (divorce on based on the fact that the
Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live
with the Respondent. In such cases, the general character of the Respondent must be proved. In
the case of Zambia Publishing Company Ltd v Pius Kakungu4 it was stated that In civil cases,
evidence of bad character of a party may be relevant to prove facts in issue and is admissible. In
deciding whether or not to admit such evidence, emphasis is placed more on probative value than
on prejudicial effect.Even in those cases, evidence of good character of a party generally need
not be led as the law presumes that a party is of good character until the contrary is proved this
was the position,

2
J. Hatchard and M. Ndulo 1991 The law of evidence in Zambia: Cases and Materials Lusaka: Multimedia
publications
3
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p132

4
(1982) Z.R. 167

5
Evidence of character in defamation cases in defamation cases, character is a fact in issue, and so
is admissible to the extent relevant and material to a cause of action or defence in defamation. 5
Actions for defamation, whether libel or slander, provide the most obvious example of the
importance of character evidence in civil cases. Yet defamation is not so much an example of
character evidence becoming relevant in a civil case; rather, it is a category sui generis. In
defamation cases, the character of the claimant, or at least some aspect of it, is a fact in issue. 6
Although defamation actions constitute a category sui generis, so far as character evidence is
concerned, it does not follow that the character of a person cannot be a fact in issue for a more
limited purpose in other kinds of case. 7

Evidence of bad character is generally inadmissible in civil cases. But where evidence suggestive
of bad character is otherwise relevant and has probative value (for example, evidence of similar
facts) it may be admitted for that reason along the lines of the former common rule in criminal
cases. In the case of Sattin v Union Bank.8 a plaintiff who brought an action against a bank for
losing a diamond which he had deposited with them as security for an overdraft was held to be
entitled to adduce evidence of another occasion on which the bank had similarly lost property
which had been deposited.

Good character in civil matters where a defendant may not adduce evidence of his good
character in response to allegations in a civil case, even where the acts alleged are intentional. In
the case of Goodright d. Faro v Hicks.9 the defendant to an action to set aside a will on the
ground of fraud sought to adduce evidence of his good character to suggest that it was not likely
that he had engaged in such a fraud. It was held that, in a civil case, the evidence was
inadmissible

CHARACTER EVIDENCE IN CRIMINAL MATTERS

In criminal cases, evidence of the accused’s bad character is generally inadmissible. The rule is
strict because such evidence tends to prejudice the accused in that he will be singled as a person
with the propensity to commit crimes. Furthermore, if a person has been tried and convicted of a

5
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p132
6
Ibid
7
ibid
8
(1978) 122 SJ 367
9
(1789) Bull NP 296

6
previous crime, it is against public policy that all future crimes should refer to previous crimes.
In Zambia however, section 157 of the Criminal Procedure Code 10 lays down general provisions
as to the admissibility of evidence of bad character of the accused in criminal matters. However,
section 157 (vi) provides exceptions as to when the above rule can operate. It compels the
accused to answer questions relating to his bad character in situations laid these situations, when
it involves similar fact, where he or she attacks the character of prosecution witness and where
he or she attacks the character of co-accused.

In the case of Melody Chibuye v The People,11 the appellant was convicted of theft and
sentenced to eighteen months' imprisonment with hard labour. Under cross-examination the
appellant was asked questions which elicited the facts that during the two months preceding his
trial he had been in prison and that he had been released from prison only two days prior to his
arrest in connection with the present case, that he had previously been in jail for theft, and a
denial that he was a habitual criminal activity. The appellant appealed against the conviction.
The court held that under section. 148 (f) of the Criminal Procedure Code, questions relating to
the accused in previous committals and convictions could only be admitted in evidence where it
can be proved that his guilt in those offences and also show that he is guilty of the present
offences; Where the good character of the prosecution witness has been put in issue and where
the accused wants to establish his good character.

Where an accused person has been committed an offence similar to those he had been convicted
of in the past, such evidence would be admissible to show that he may be guilty of the offence he
is then charged with. Similar fact evidence is permitted because of its relevance to the issue of
guilt as exemplified in case of Ester Mwiimbe v The People,12 in which it was held that,
evidence of an alleged previous attempt by an accused on the life of a victim is admissible at the
courts discretion as similar fact evidence provided that the court has clearly15 established that its
evidential value outweighs its prejudicial effect.

10
Chapter 88 of the laws of zambia
11
(1970) Z.R. 28 (H.C.)
12
(1986) Z.R 15 (SC

7
The second exception provided for under section 157(vi) of the Criminal Procedure Code 13 as
illustrated in the case of The People v Musengule and another.14 When he or she has given
evidence against any other person charged with the same offence, or in other words attacks the
character of co-accused. The principle was illustrated in the case of Miyutu and another v the
people.15is where an accused personally or through his advocate, asks questions of the witnesses
for the prosecution with a view to establishing his own good character, or has given evidence of
his own good character, or the nature or conduct of the defence is such as to involve imputations
on the character of the complainant or the witnesses for the prosecution.

In Conclusion, it has been shown that character evidence refers to the general reputation of a
party or witness. In criminal cases the accused may call evidence of his good character or give
evidence to show the bad character of the witnesses for the prosecution. If he does so, the
prosecution may call evidence in rebuttal, but any such evidence must be limited to evidence of
reputation and not include opinions about the accused's disposition. In civil cases the reputation
of a party is not admissible unless it is directly in issue, as it may be in an action for defamation.
This entails that when a party’s general character is in issue there should be proof of what that
general character is. Where evidence of character of a party is tendered to prove or disprove
some issue it is excluded even if it is relevant. This position applies to both criminal and civil
cases. In criminal cases the general rule is that evidence of character and previous convictions of
parties and witnesses are not relevant and therefore not admissible.

BIBLIOGRAPHY

BOOKS

Cross & Wilkins & Tapper 1986 Outline of the Law of Evidence 6th Edition London:
Butterworths
13
Cap 88 of The Laws of Zambia
14
[2012] ZMHC 6
15
[2017] ZMSC 39

8
J. Hatchard and M. Ndulo 1991 The law of evidence in Zambia: Cases and Materials Lusaka:
Multimedia publications

Richard Glover Murphy On Evidence (15th edn, Oxford University Press, 2017)

Merriam Webster Merriam-Webster’s Collegiate Dictionary (2019)

Richard Glover Murphy On Evidence (15th edn, Oxford University Press, 2017)

Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press.
p132

CASES

Ester Mwiimbe V The People(1986) Z.R 15 (SC

Goodright D. Faro V Hicks. (1789) Bull NP 296

Hurst V Evans [1917] 1 KB 352.

Melody Chibuye V The People(1970) Z.R. 28 (H.C.)

Miyutu And Another V The People [2017] ZMSC 39

Sattin V Union Bank. (1978) 122 SJ 367

The People V Musengule And Another[2012] ZMHC 6.

Zambia Publishing Company Ltd V Pius Kakungu(1982) Z.R. 167

STATUTES

The Criminal Procedure Code Chapter 88 of the laws of Zambia

The constitution of Zambia Act No 2 of 2016