THE EVIDENCE ACT 1967 ARRANGEMENT OF · PDF fileTHE EVIDENCE ACT 1967 ARRANGEMENT OF SECTIONS...

T H E E V I D E N C E A C T 1 9 6 7

A R R A N G E M E N T O F S E C T I O N S

CHAPTER I- PRELIMINARY

Section

1. Short title and commencement.

2. Application.

3. Interpretation.

4. Permissible inferences.

5. Presumptions.

6. Conclusive proof.

C H A P T E R H-OF T H E R E L E V A N C Y O F F A C T S

P A R T I

GENERAL

7. Evidence may be given of facts in issue and relevant facts. 8. Relevancy of facts forming part of same transaction. 9. Facts which are the occasion, cause or effect of facts in issue.

10. Motive, preparation and previous or s u b s e q u e n t conduct. 11. Fac t s n e c e s s a r y to explain or introduce relevant facts.

12. Things said or done by conspirator in reference to common design:

13. When facts not otherwise relevant become relevant. 14. In suits for d a m a g e s , facts tending to enable court to deter

mine amount are relevant. 15. Facts affecting existence of right or custom. 16. Fac t s showing exis tence of s tate of mind or of body, or of

bodily feeling. 17. F a c t s b e a r i n g o n q u e s t i o n w h e t h e r a c t w a s a c c i d e n t a l o r

intentional. 18. Existence of course of business when relevant.

1

2 N o . 6 Evidence Act 1967 1967

P A R T n ADMISSIONS

Section 19. Admission denned. 20 . S ta tements by party to suit or agen t or interested party. 21. Admissions by p e r s o n s whose position m u s t be proved as

aga ins t party to suit. 22 . Admissions by persons expressly referred to by party to suit. 2 3 . Proof of admissions against persons making them, and by or

on their behalf 24 . Oral admissions as to contents of documents. 2 5 . Admissions made without prejudice in civil c a s e s . 26 . Admissions not conclusive proof, but may es top.

P A R T HI CONFESSIONS

27 . S ta tements , etc., m a d e to police officers. 2 8 . Confessions while in police custody. 29 . Confession c a u s e d by inducement , threat or promise, when

irrelevant in criminal proceeding. 30. Confes s ion m a d e after r e m o v a l of impres s ion c a u s e d by

inducement, threat or promise relevant. 3 1 . Re l evance of information received from a c c u s e d m police

custody. 32. C o n f e s s i o n o the rwise r e l e v a n t no t to b e c o m e i r re levant

because of promise of secrecy, etc. 3 3 . Consideration ofproved confession affecting person making

it and others jointly under trial for s a m e offence.

PART IV STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES

34. Statement by deceased person, etc., when-(a) relating to cause of death; (b) made in the course of business; (c) against the interest of maker; (d) an opinion as to public right or custom; (e) relating to existence of relationship; (f) relating to family affairs; (g) relating to a transaction creating or asserting, etc., a custom; (h) made by several persons and expressing feelings.

35 . Relevancy of evidence given in previous proceedings.

N o . 6 Evidence Act 1967 1967 3

P A R T V

STATEMENTS UNDER SPECIAL CIRCUMSTANCES

Section 36. Entries in books of account. 37. Entries in public records. 38. Statement, etc., in maps , charts and plans. 39. S ta tement of fact in laws, gaze t tes , etc. 40. Sta tements as to law contained in books .

EXTENT TO WHICH STATEMENT IS TO BE PROVED

4 1 . What evidence to be given when s t a t emen t forms par t of a conversation, document, book or series of letters or papers .

42 . Previous judgments relevant to ba r a s econd suit or trial. 4 3 . Relevancy of certain judgments in probate, etc., jurisdiction. 44. Relevancy and effect of judgments , orders or dec rees , other

than those mentioned in section 35. 45 . Relevancy of judgments , etc., other than those mentioned in

sections 34 to 36. 46. Fraud or collusion in obtaining judgment , or incompetency

of court, may be proved.

P A R T vm

RELEVANCY OF OPINIONS OF THIRD P E R S O N S

47 . Opinions of experts. 4 8 . Facts bearing upon opinions ofexperts. 4 9 . Relevancy of opinion as to handwriting. 50 . Re levancy of opinion as to exis tence of right or cus tom. 5 1 . Relevancy of opinion as to usages , tenets, etc. 52 . Relevancy of opinion on relationship. 5 3 . Grounds of opinion.

P A R T V I

P A R T vn RELEVANCY OF JUDGMENTS

P A R T rx RELEVANCY OF CHARACTER

54.

55 .

56.

57.

Character in civil cases . Good character in criminal cases . Bad character in criminal cases . Definition of "character"


C H A P T E R m - P R O O F

P A R T I

FACTS REQUIRING NO P R O O F

Section 58 . Facts judicially noticed. 59 . Facts of which court shall take judicial notice. 60. Facts admitted in civil proceedings need not be proved.

P A R T n

ORAL EVIDENCE

6 1 . Oral evidence. 62 . Oral evidence must be direct. 6 3 . Proof of contents of documents. 64 . Primary evidence. 65 . Secondary evidence. 66. Proof of documents by primary evidence. 67 . Proof of documents by secondary evidence. 6 8 . Rules as to notice to produce. 69 . Proof of signature and handwriting ofperson alleged to have

signed or written document. 7 0 . P r o o f o f e x e c u t i o n o f d o c u m e n t r e q u i r e d by l a w to b e

attested. 7 1 . Proof where no attesting witness found. 7 2 . Admission of execution by party to a t tes ted document . 7 3 . Proof when attesting witness denies the execution. 74 . P roof of d o c u m e n t not required by law to be a t tes ted . 7 5 . Comparison of signature, writing or seal with others admitted

or proved.

P A R T TV BANKERS' BOOKS

7 6 . Definitions. 77 . Mode of proof of entries in banker's books. 7 8 . Proof that book is a banker's book. 79 . Verification of copy. 80. C a s e in which b a n k e r , e tc . , n o t c o m p e l l a b l e to p r o d u c e

book, etc. 8 1 . Court may order inspection, etc. 82 . Costs.


P A R T V PUBLIC DOCUMENTS

Section 83 . Public documents. 84. Private documents. 85 . Certified copies of public documents. 86. Proof of documents by production of certified copies 87. Proof of other official documents.

P A R T VI PRESUMPTIONS AS TO DOCUMENTS

88 . Presumption as to genuineness of certified copies. 89. Presumption as to documents produced as record of evidence. 90. Presumption as to gaze t t e s , n e w s p a p e r s , private Acts of the

National Assembly and other documents. 9 1 . P r e s u m p t i o n a s to m a p s or p l a n s m a d e by au thor i ty of

Government. 92. Presumption as to collections of laws and reports of decisions. 9 3 . P resumpt ion as to private d o c u m e n t s e x e c u t e d outside the

United Republic. 94. Presumption as to powers of attorney. 9 5 . Presumption as to certified copies of foreign judicial records. 96. Presumption as to books, maps and charts. 97 . Presumption as to telecommunications messages . 98 . P r e s u m p t i o n as to due execu t ion , e tc . , of d o c u m e n t s no t

produced. 99 . Presumption as to documents twenty years old.

P A R T vn OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

100. Evidence ofterms of contracts, grants and other dispositions of property reduced to form of document.

1 0 1 . Exclusion of evidence of oral agreement. 102. Exclusion of evidence to explain pa ten t ambiguity. 103 . Exclusion of ev idence aga ins t application of d o c u m e n t to

existing facts. 104. Evidence as to latent ambiguity. 105. Evidence as to application of l anguage which can apply to

one only of several persons. 106. Evidence as to application of language to one oftwo sets of

facts. 107. Evidence as to meaning of illegible characters , etc. 108. Evidence of variation given by third parties. 109. Saving of provisions of Succession Ordinance.

6 No. 6 Evidence Act 1967 1967

C H A P T E R TV-PRODUCTION AND E F F E C T OF EVIDENCE P A R T I

THE BURDEN OF PROOF Section

110. Burden of proof 111. On whom burden of proof lies. 112. Burden of proof of particular fact. 113. B u r d e n of p rov ing fact to be p r o v e d to m a k e e v i d e n c e

admissible. 114. Extent of burden of proof on accused. 115. Burden ofproving fact especially within knowledge In civil

proceedings. 116. Burden ofproving death of person known to have been alive

within thirty years . 117. B u r d e n o fp rov ing tha t p e r s o n is alive w h o h a s no t b e e n

heard of for seven years. 118. Burden of proof as to relationship in the c a s e s of pa r tne r s ,

landlord and tenant, principal and agent. 119. Burden of proof as to ownership. 120. P r o o f of g o o d faith in t r a n s a c t i o n s w h e r e one par ty is in

relation of active confidence. 121. Birth during marriage conclusive proof of legitimacy. 122. Court may presume existence of certain facts.

PART 11 ESTOPPEL

123. Estoppel. 124. Es toppel of t enan t or of l icensee of person in possess ion . 125. Estoppel of acceptor of bill of exchange. 126. Estoppel of a bailee or licensee.

CHAPTER V-WITNESSES P A R T I

COMPETENCY COMPEL LABILITY AND PRIVILEGE OF WITNESSES 127. Who may testify. 128. Dumb witnesses. 129. Privilege of court. 130. Competency and compel lability of a ccused and husband or

wife. 131. General competency of parties and their husbands and wives

in civil proceedings. 132. Privilege relating to official records. 133. Information as to commission ofoffences. 134. Professional communications.

I


Section 135 . Privilege of interpreters, and advocates' clerks. 136. Privilege notwaived by volunteering evidence. 137. Confidential communications with legal advisers. 138. Production of title-deeds ofwitness not a party. 139. Production of incriminating documents. 140. P r o d u c t i o n of d o c u m e n t s which a n o t h e r p e r s o n hav ing

possession could refuse to produce. 1 4 1 . Witness not excused from answering on ground that answer

will incriminate. 142. Accomplice. 143 . Number of witnesses.

P A R I III

EXAMINATION OF WITNESSES

144. Order of production and examination of wi tnesses .

145. Court to decide as to admissibility of evidence. 146. Examination of witnesses . 147. Order and direction of examinations.

P A R T rv

QUESTIONING OF WITNESSES

148. Cross-examination of person called to produce a document . 149. Witnesses to character. 150. Meaning of leading question. 1 5 1 . Leading questions in examination-in-chief and re-examination. 152. Leading questions in cross-examination. 153 . Evidence as to matters in writing. 154. Cross-examinat ion as to previous s ta tements in writing. 155. Questions lawful in cross-examination. 156. When witness to be compelled to answer. 157. Cross-examination of accused person. 158. Cour t to dec ide w h e n ques t ions shal l be a s k e d a n d w h e n

witness compelled to answer. 159. Quest ions not to be a sked without reasonable grounds . 160. Indecent and scandalous questions.


Section 161. Questions intended to insult or annoy. 162. Exclusion of ev idence to contradic t a n s w e r s to ques t ions

testing veracity.

163 . Discretion to allow cross-examinat ion of own witness.

164- Impeaching the credit of a witness. 165. Ev idence tending to corroborate ev idence of re levant fact

admissible. 166. Former s ta tements ofwitness m a y b e proved to corroborate

later testimony as to same fact. 167. W h a t m a t t e r s m a y b e p roved in connec t ion with p roved

s ta tement relevant under section 34 or 35.

PART V REFRESHING MEMORY AND PRODUCTION OF DOCUMENTS

168. Refreshing memory. 169. When witness may use copy of document to refresh memory. 170. Expert may refresh his memory. 1 7 1 . Tes t imony to facts s t a t ed in d o c u m e n t a l though facts not

themselves specifically recalled. 172. Right of adverse party as to writing used to refresh memory. 173. Production of documents. 174. Giving as evidence, of document called for and produced on

notice. 175. Using as ev idence of d o c u m e n t product ion of which was

refused. 176. P o w e r of court to put ques t ions or o rder product ion.

PART VI QUESTIONS By A S S E S S O R S

177. Power of assessors to put questions.

CHAPTER VI-IMPROPER ADMISSION AND REJECTION OF EVIDENCE

178. No new trial for improper admission or rejection of evidence.

CHAPTER \ II-MIS CELLANEOUS

179. Saving for other laws. 180. Amendment and repeal of laws.


T H E UNITED R E P U B L I C O F TANZANIA

No. 6 OF 1967

I AS S E N T ,

2 7 T H APRIL , 1 9 6 7

An Act to declare the Law of Evidence

ENACTED by the Parl iament of the United Republic of Tanzania.

C H A P T E R I-PRELTMLNARY

1. This Act may be cited as the Evidence Act 1967 and shall csiaa# title into o p e r a t i o n on s u c h d a t e a s the Minis te r m a y , by not ice iryhgom. Gazette, appoint. mencement

2. This Act shall apply to all judicial proceedings in Tanganyika inAgjjlication before the High C o u r t a n d all m a g i s t r a t e s ' cour t s e x c e p t P r i m a r y Courts, but not to affidavits presented to any court or officer nor, subject to section 76, to proceedings before an arbitrator.

3.-(l) In this Act the following words a n d e x p r e s s i o n s a re usediiftrpretation the following s e n s e s u n l e s s a con t ra ry intent ion a p p e a r s from the c o n t e x t -"court" includes all j udges , magistrates and a s s e s s o r s and all p e r s o n s ,

except arbitrators, legally authorized to take evidence; "documen t" m e a n s a n y writing, handwrit ing, typewriting, printing,

photostat, photograph and every recording upon any tangible thing, any form of communicat ion or representa t ion by letters, figures, marks or symbols or by more than one of these m e a n s , which may be used forthe purpose of recording any matter provided that such recording is reasonably pe rmanen t and readable by sight;

"documenta ry ev idence" m e a n s all d o c u m e n t s p r o d u c e d as evidence before the court;

10 N o . 6 Evidence Act 1967 1967

"evidence" denotes the m e a n s by which an alleged mat ter of fact, the truth of which is submitted to investigation, is proved or disproved; and without prejudice to the foregoing generality, includes statements by a c c u s e d p e r s o n s , admiss ions and observat ions by the court in its judicial capacity;

"fact" includes— (a) any thing, state of things, or relation of things, capable of being

perceived by the senses; (b) any menta l condition of which any person is conscious;

"facts in i s s u e " m e a n s a n y fact from wh ich , e i t he r by i tself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, a s se r t ed or denied in any suit or proceeding, necessarily follows;

" h u s b a n d " or "wife" m e a n s the s p o u s e of a mar r iage which is valid according to the statutory or customary laws ofthe United Republic;

"oral evidence" means all statements which the court permits or re quires to be made before it by witnesses, in relation to matters of fact under inquiry,

"relevant" - one fact is said to be re levant to ano the r when the one is c o n n e c t e d with the o t h e r in a n y o f t h e w a y s refer red to in the provisions ofthis Act relating to the re levancy of facts.

(2) A fact is said to be proved when-(a) in criminal matters except where otherwise provided by statute

or o the r law, the cour t be l i eves it to exis t b e y o n d r e a s o n a b l e doubt;

(b) in civil mat ters , including matrimonial c a u s e s and mat ters , its existence is establ ished by a preponderance of probability.

mferenles16 ^' W h e n e v e r it is provided by this Act or any other written law that merences ^ c o u r [ may presume a fact, it may either regard such fact as proved,

un less a n d until it is d isproved, or m a y call for proof of it. Presumptions 5. W h e n e v e r it is directed by this Act or any other written law that

the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

Conclusive 6. W h e n one fact is dec l a r ed by this Act or a n y o ther written law proof t 0 5 e conclusive proof of another , the court shall, on proof of the one

fact, r ega rd the o the r a s p roved , a n d shal l no t allow e v i d e n c e to be given forthe purpose of disproving it.

C H A P T E R H O F T H E R E L E V A N C Y OF F A C T S

P A R T I

GENERAL Evidence may 7. Subject to the provisions of any other law, evidence m a y b e given offf'ctsTin ^ a n y suit or proceeding ofthe existence or non-existence of every fact issue and in i s s u e , a n d o f s u c h o t h e r facts a s a re h e r e i n a f t e r d e c l a r e d to be

relevant facts relevant, and of no others.

N o . 6 Evidence Act 1967 1967 11

8. Fac t s which, though not in i s sue , are so c o n n e c t e d with a fcdetvancy of in issue as to form part of the s a m e transaction are relevant, w h e W e r " " 1 1 1 " 8

t hey occur red a t the s a m e time a n d p lace or a t different t imes i ^ n d f s a m e

places. transact™ . . . . „ . . Facts which

9. Facts which are the occas ion, c a u s e or effect, immediate or otJêXg wise, of relevant facts, or facts in issue, or which constitute the statejjgjsion things under which they happened , or which afforded an opporturotjfse oreffect for their occurrence or transaction, are relevant. offacts in

issue 10. (1) Any fact is re levant which shows or consti tutes a motive

or preparation for any fact in issue or relevant fact. (2) The c o n d u c t of a n y party, or of a n y a g e n t of a n y party, to a $ p i v e , sui t or p r o c e e d i n g , in r e f e r e n c e to s u c h sui t or p r o c e e d i n g , OK r jn a r a t ion r e f e r e n c e to a n y fact in i s s u e t h e r e i n or r e l e v a n t t h e r e t o , andaitbprevious conduc t of any pe r son an offence aga ins t whom is the subject ofcan^hsequent proceeding, is relevant, if such conduct influences or i s influencedcbyduct a n y fact in i s s u e or r e l e v a n t fact, a n d w h e t h e r it w a s p r e v i o u s or subsequent thereto.

(3) When the conduct of any person is relevant, any s ta tement made to him or in his p r e s e n c e a n d hear ing which affects such conduc t is relevant.

(4) The word "conduct" in this section does not include s ta tements , unless those s ta tements a ccompany and explain acts other than s ta te m e n t s ; but this provision shall not affect the re levancy of s t a t ements under any other section ofthis Act.

11. Facts necessa ry to explain or introduce a fact in issue orrele^ffftt fact, or which s u p p o r t or r ebu t a n inference s u g g e s t e d by a fa©tckasary i ssue or re levant fact, or which establ ish the identity of any thing 0 6 F l a m o r

person whose identity is relevant, or fix the time or place at which i l a t l ri$ u c e

fact in i ssue or re levant fact h a p p e n e d , or which s h o w the relation 6of 1 1 a c t s

parties by whom any such fact was t ransacted, are relevant m so far as they are necessary for that purpose.

12. Where there is r e a s o n a b l e ground to believe that two or rrttffgs s a i d

persons have conspired together to commit an offence or an actionable: by w r o n g , anyth ing said , d o n e or written by a n y o n e of s u c h pericfM1™101^ referring to or in execution or furtherance of their common intention, to comffl6fr e r e n c e

after the time w h e n s u c h intention was first en te r t a ined by a n y orfe of t hem, is a re levant fact as aga in s t e a c h of the p e r s o n s be l ieved to be so conspiring, as well for the purpose of proving the existence ofthe conspiracy as for the purpose of showing that any such pe r son was a party to it.

13. Fac ts not otherwise relevant are relevant- when facts ( a ) if t h e y a r e i n c o n s i s t e n t with a n y fact in i s s u e or r e l e v a r W t o t h e r w i s e

fact; or ! ; e l e v a n t

become (b) if by themselves or in connection with other facts they make theievant

exis tence or non-ex i s tence of any fact m issue or re levant fact highly probable or improbable.

12 N o . 6 Evidence Act 1967 1967

In suits for damages, facts tending to enable court to determine amount are relevant

Facts affe cting existence of right or custom

14. In suits in which damages are claimed, any fact which will enable the cour t to d e t e r m i n e the a m o u n t of d a m a g e s which o u g h t to b e awarded is relevant.

Facts showing existence of state of mind or of body, feeling

Facts bearing on question whether act was accidental or intentional Existence of course of business whe relevant

15. Where the ex is tence of any right or cus tom is in ques t ion , the following facts are relevant-

(a) any t ransact ion by which the right or cus tom in quest ion was c rea ted , c la imed, modified, r ecognized , a s s e r t e d or den ied , or which was inconsistent with its existence;

(b) particular ins tances in which the right or cus tom was claimed, recognized or exerc ised , or in which its exercise was disputed, asserted or departed from.

16-.(I) F a c t s showing the e x i s t e n c e of a n y s ta te of mind, s u c h as intention, knowledge, good faith, negligence, r a shness , ill-will or goodwill towards any particular person, or showing the existence of any state or of bodily of body or bodily feeling, are relevant, when the existence of any such

state of mind or body or bodily feeling is in issue or relevant. (2) A fact relevant within the meaning of subsection (1) as showing

the existence of a relevant state of mind must show that the state of mind exists, not generally, but m reference to the particular matter in question.

(3) W h e r e , upon the trial of a p e r s o n a c c u s e d of a n offence, the previous commiss ion by the a c c u s e d of an offence is relevant within the meaning of subsection (1), the previous conviction of such person shall also be a relevant fact. 17 . W h e n t h e r e is a q u e s t i o n w h e t h e r a n a c t w a s a c c i d e n t a l o r intent ional , or d o n e with a par t icu lar k n o w l e d g e or intent ion, the

fact tha t s u c h a c t formed par t of a se r ies of similar o c c u r r e n c e s , in each of which the person doing the act was concerned, is relevant.

18. W h e n the re is a q u e s t i o n w h e t h e r a par t icu lar a c t w a s d o n e , the existence of any course of bus iness , according to which it naturally would have been done, is a relevant fact.

Admission defined

Statements by party to suit or agent or interested party

P A R T n ADMISSIONS

19. An admission is a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, and which is m a d e by any of the persons , and m the circumstances, hereinafter mentioned.

20-.(1) Statements made by a party to the proceeding or by an agent to any such party, whom the court regards in the circumstances ofthe ca se as expressly or impliedly authorized by him to make them, are

admissions. (2) Statements made by parties to suits, suing or sued in a representa

tive cha rac te r , a re not admis s ions un le s s they were m a d e while the party making t h e m held that charac ter .

N o . 6 Evidence Act 1967 1967 13

(3) Statements made by-(a) pe r sons who have any proprietary or pecuniary interest in the

subject matter of the proceeding, and who make the s ta tement in their cha rac te r of pe r sons so interes ted; or

(b) p e r s o n s from w h o m the part ies to the suit have derived their interest in the subject matter of the suit,

are admissions if they are made during the continuance of the interest ofthe persons making the s ta tements . 2 1 . S t a t e m e n t s m a d e by p e r s o n s w h o s e pos i t ion or liability^f"!^ 8 1 0 1 1 8

n e c e s s a r y to prove as aga in s t any party to the suit are admission3°, e B° n s

such s t a t emen t s would be re levant as aga ins t such pe r sons in r ^ ^ t j g n m u s t

to such position or liability in a suit b rought by or aga ins t t hem, a n d , r J ° J ° ' if be proved as

they are made whilst the person making them occupies such positionap5itaparty is subject to such liability. suit

22. S t a t emen t s m a d e by p e r s o n s to whom a party to, the s u i t 4 f t e ) S l o n s

expressly referred for information in reference to a matter in dispute, e x p r e ^ ^ . g S

d ° t

n

0

s

b y

are admissions. par ty to suit

23. Admissions are relevant and may be proved as against the pers?6<n°.fof who makes them or his representative in interest, but they cannot b | m ^ s

s

t

l o n s

proved by or on behalf ofthe person who makes them or by his p e r ^ n j ^ g t h e m representa t ive in interest , excep t in the following c a s e s : - a n d b y o r o n

(a) an admission may be proved by or on behalf of the person makiagr beha l f it when it is of such a nature that, if the p e r s o n making it were d e a d , it w o u l d b e r e l e v a n t a s b e t w e e n third p a r t i e s u n d e r section 34;

(b) a n a d m i s s i o n m a y b e p r o v e d by or on b e h a l f of the p e r s o n making it, when it consists of a s ta tement of the existence of any s ta te of mind or b o d y , r e l e v a n t or in is s u e m a d e a t or a b o u t t h e t ime w h e n s u c h s t a t e o f m i n d o f b o d y e x i s t e d , a n d is accompanied by conduct rendering its falsehood improbable; and

(c) an admission may be proved by or on behalf of the person making it, if it is r e l e v a n t o the rwise t h a n a s an a d m i s s i o n .

Oral 24. oral admiss ions as to the contents of a d o c u m e n t are not r e l e v a n t .

admiss ions u n l e s s a n d until t he pa r ty p r o p o s i n g to p r o v e t h e m s h o w s t h a t hstds enti t led to give s e c o n d a r y e v i d e n c e o f t h e c o n t e n t s of s u c h d o c u m ^ n ^ o f

u n d e r the ru les h e r e i n a f t e r c o n t a i n e d , or u n l e s s the g e n u i n e n e s s ^ £ , f ^ n t s

document produced is in question. 25 . - ( I ) In civil c a s e s n o a d m i s s i o n is r e l e v a n t if it is m a d e e i t h e ¥ m i s s i o n s

u p o n a n e x p r e s s condi t ion t h a t e v i d e n c e of it is n o t to b e g iven, d¥arrf w i t h o u t

r- . • . . • r- . . • prejudice in c i r c u m s t a n c e s from which the cour t c a n inter t h a t the pa r t i e s agfcft£<gses

together that evidence of it should not be given. (2) Nothing in subsection (1) shal lbe taken to exempt any advocate

from giving evidence of any mat ter of which he may be compelled to give evidence under section 137.

2 6 . A d m i s s i o n s a r e n o t c o n c l u s i v e p r o o f o f t h e m a t t e r s a d m i g e ^ J s i o n s b u t t h e y m a y o p e r a t e a s e s t o p p e l s u n d e r t h e p r o v i s i o n s h e r e i n a f t e r contained. conclusive

proof, but m a y es top

14 N o . 6 Evidence Act 1967 1967

PAR I III

CONFESSIONS

Statements, etc., made to police officers

27. No confession made to a police officer shall be proved as against a person accused ofan offence.

28. No confession made by any person whilst he is in the custody of a police officer, u n l e s s it b e m a d e in the immed ia t e p r e s e n c e of a nagistrate as defined in the Magistrates ' Courts Act, 19o3 or a justice

Confessions while in police custody ma' Cap. 537 of the p e a c e under that Act, shall be proved as against such person

Confession caused by inducement, thre at or promise

Confession made after removal of impression caused by inducement

Relevance of information received from accused in police custody

Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.

Consideration of proved confession affecting person making it and others jointly under trial for same offence

29. No confession which is tendered in evidence shall be rejected on the ground that a promise or th rea t h a s b e e n held out to, the p e r s o n

confessing unless the court is of the opinion that the inducement was m a d e in such circumstances and was of such a nature as was likely to cause an untrue admission of guilt to: be made.

30. Where an inducement has b e e n m a d e to a pe r son a c c u s e d o f a n offence in such circumstances and of such a nature as are referred to in section 29 and a confession is made after the impression caused by the i nducemen t h a s , in the opinion of the court, b e e n fully r emoved , the confession is relevant and need not be rejected.

3 1. W h e n a n y fact is d e p o s e d to a s d i s c o v e r e d in c o n s e q u e n c e of information r e c e i v e d from a p e r s o n a c c u s e d of a n y offence in the cus tody of a police officer, so m u c h of s u c h information, w h e t h e r it amounts to a confession or not, as relates distinctly to the fact thereby discovered, is relevant.

32. If such a confess ion is o therwise relevant , it d o e s not b e c o m e irrelevant merely b e c a u s e it was m a d e under a promise of secrecy , or in c o n s e q u e n c e of a deception practised on the a c c u s e d person for the purpose of obtaining it, or when he was drunk, or because it was made in a n s w e r to ques t ions which he n e e d not have a n s w e r e d w h a t e v e r m a y h a v e b e e n the form of t h o s e q u e s t i o n s , or b e c a u s e he w a s not w a r n e d t h a t he w a s n o t b o u n d to m a k e s u c h c o n f e s s i o n , a n d t h a t evidence of it might be given agains t him.

33.-(I) When more persons than one are being tried jointly for the s a m e offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court shall not take into consideration such confession as against such other person but may take it into consideration only against the person who makes such confession.

(2) In this section "offence"' includes the abe tment of, or at tempt to commit, the offence.

N o . 6 Evidence Act 1967 1967 15

PAR I IV STATEMENTS BY P E R S O N S WHO CANNOT BE CALLED AS WITNESSES

34. S ta t emen t s , written or oral of relevant facts m a d e by a p e r s © f l t e m e n t b y

who is dead , or who cannot be found, or who h a s b e c o m e i n c a p a j j ^ a s e d

of giving evidence , or whose a t t endance canno t be procured without on, etc., an amount of delay or expense which in the circumstances of the c^se-a p p e a r s to the court u n r e a s o n a b l e , a re t h e m s e l v e s admiss ib le in the following cases.;—

(a) when the s t a t e m e n t is m a d e by a pe r son as to the c a u s e o f f t ^ g 1 0

d e a t h , or a s to a n y o f t h e c i r c u m s t a n c e s o f the t r ansac t ion wMwis o f death resulted in his death , in ca se s in which the cause of that person 's d e a t h c o m e s into q u e s t i o n . S u c h s t a t e m e n t s a re a d m i s s i b l e whether the pe r son who m a d e them was or was not, at the time when they were m a d e , under expectation of death , and whatever m a y be the na ture o f the p roceed ing in which the c a u s e of his death comes into, question;

(b) when the s t a t e m e n t was m a d e by such pe r son m the ordinafy ad e in the course of bus iness , and in particular when it consists o f a n errtryse of or m e m o r a n d u m m a d e by him in books or records kept in tftasiness ordinary course of bus ines s or in the discharge of professional duty; or of an acknowledgment written or s igned by him of the receipt of money , g o o d s , securit ies or property of any kind; or of a documen t u s e d in c o m m e r c e , written or s igned by him; or o f the date of a letter or o ther d o c u m e n t usually da ted , written or signed by him;

(c) when the statement is against the pecuniary or proprietary interesa|ainstthe ofthe person making it, o r w h e n , if true, it would expose him oipterestof would have exposed him to a criminal prosecution or to a s u i t f w k e r damages;

(d) when the s ta tement gives the opinion o f a n y such person as t o a ° o p m i o n

the ex is tence of any public right or cus tom or ma t t e r of public t 0 P u b l l c

or g e n e r a l interest , o f t he ex i s t ence of which, if it ex is ted , h ^ s t 0 ^ would have b e e n likely to be a w a r e , a n d w h e n s u c h s t a t e m e n t w a s m a d e before a n y con t roversy a s to s u c h right, c u s t o m or mat ter had arisen;

(e) when the s ta tement relates to the existence of any relationshiprbying to b lood , m a r r i a g e , or a d o p t i o n b e t w e e n p e r s o n s a s to wh<5^1fetenc® o f

relationship by blood, marr iage or adoption the pe r son mak i r fg t l o n s i p

the s t a t e m e n t h a d spec i a l m e a n s of knowledge , a n d w h e n the s t a t e m e n t was m a d e before the quest ion in dispute was raised;

(f) when the statement relates to the existence ofany relationship beating to blood, marr iage or adoption b e t w e e n p e r s o n s d e c e a s e d , arj-dnify affairs m a d e in any will or d e e d relating to the affairs o f the family to which a n y s u c h d e c e a s e d p e r s o n b e l o n g e d , or in a n y family ped igree or upon any t o m b s t o n e , family portrait or o ther thing on which s u c h s t a t e m e n t s a re usua l ly m a d e , a n d w h e n s u c h s t a t e m e n t was m a d e before the quest ion in dispute was raised;

(g) when the s ta tement is contained in any deed or other do cum emitting to a which relates to any such transaction as is mentioned in para- ereatingrafisaction graph (a) Of Section 15; asserting, etc. ;

a custom

16 N o . 6 Evidence Act 1967 1967

made by several persons and expressing feelings

Relevancy of evidence give in previous proceedings

Entries in books of account

Entries in public records

Statements, etc., in maps charts and plans

Statement of fact in laws, gazettes, etc.

(h) w h e n the s t a t e m e n t w a s m a d e by a n u m b e r of p e r s o n s , a n d e x p r e s s e d feelings or impress ions on their par t re levant to the mat ter in question.

35. (1) E v i d e n c e given by a w i tnes s in a judicial p r o c e e d i n g is n relevant for the purpose of proving, in a subsequent judicial proceeding

or in a later s t a g e o f the s a m e judicial p roceed ing , the truth o f the facts which it s ta tes in the following c i r cums tances -(a) where the witness is dead , or cannot be found, or i s incapable of

giving ev idence , or is kept out of the way by the adverse party, or where his p r e sence cannot be obtained without an amoun t of delay or expense which in the circumstances ofthe case the court considers unreasonable;

and where, in the case of a subsequent proceeding-(b) the proceeding is between the same parties or their representatives

in interest; and (c) the a d v e r s e pa r ty in the first p r o c e e d i n g h a d the r ight a n d

opportunity to cross-examine; and (d) the questions in issue were substantially the same in the first as

in the second proceeding. (2) For the purposes ofthis section-(a) the expression "judicial proceeding" shall be d e e m e d to include

any proceeding in which evidence is taken by a person authorized by law to take that evidence on oath;

(b) a criminal trial or inquiry shall be d e e m e d to be a p roceed ing between the prosecutor and the accused.

P A R T V STATEMENTS UNDER SPECIAL CIRCUMSTANCES

36. En t r i es in b o o k s of a c c o u n t , regular ly k e p t in the c o u r s e of b u s i n e s s , are re levant w h e n e v e r they refer to a mat ter into which the court h a s to inquire, bu t such s t a t e m e n t shal l no t a lone be sufficient evidence to charge any person with liability.

37. An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and m a d e by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.

38. S ta tements of facts in issue or relevant facts, made in published m a p s or charts general ly offered for public sale or in m a p s or p lans m a d e u n d e r t he au thor i ty o f G o v e r n m e n t , a s to m a t t e r s u s u a l l y r e p r e s e n t e d or s t a t ed in s u c h m a p s , char ts or p l a n s , a re t h e m s e l v e s relevant facts.

39 . W h e n the cour t h a s to form an opinion a s to the e x i s t e n c e of a n y fact of a public n a t u r e , a n y s t a t e m e n t of it, m a d e in a rec i ta l

c o n t a i n e d in a n y Act, or in a n y l a w o f t h e Un i t ed R e p u b l i c duly promulgated, or in a notification of the Government appear ing in the Gazette is a relevant fact,

No. 6 EVIDENCE ACT 1967 1967 17

40. When the court has to form an opinion as to a law of any couiStPp™61118

any s ta tement of such law contained in a book purporting to be p r i g ^ d ^ j or publ ished u n d e r the authority of the G o v e r n m e n t of such country,

r J in Books and to contain any such law, and any report of the ruling of the courts of such country conta ined in a book purporting to be a report of such rulings, are relevant .

P A R T VI EXTENT TO WHICH STATEMENT IS TO BE PROVED

4 1 . W h e n a n y s t a t e m e n t o f w h i c h e v i d e n c e is g iven forms par t W K { e v i d e n c e

longer s t a tement , or of a conversat ion or par t of an isolated d o c u r f f e T r t f l v e n

when or is c o n t a i n e d in a d o c u m e n t wh ich forms p a r t of a b o o k , or Qtf tgment c o n n e c t e d s e r i e s of le t ters or p a p e r s , e v i d e n c e s h a l l b e g iven a f e an much a n d no more o f the s t a t ement , conversa t ion , documen t , b o o k a Q C v e r -s e r i e s o f le t ters or p a p e r s a s t he c o u r t c o n s i d e r s n e c e s s a r y ifhttfeat particular ca se to the full unders tanding of the nature and effect of<tfre iment> statement, and ofthe circumstances in which it was made. book or serious

of letter or P A R T v n p a p e r s

RELEVANCY OF JUDGMENTS P rc vious

42 . The ex i s t ence of a n y j u d g m e n t , o rder or d e c r e e which by l j J , J | m e n t s

prevents any court from taking cognizance of a suit or holding a tr iaJjevantto is a relevant fact when the question is whether such court ought to t ^ f e s e C o n d cognizance of such suit or to hold such trial. suitortrial 4 3 - ( l ) A final j u d g m e n t , o rder or d e c r e e of a c o m p e t e n t court, in R e l e v a n c o f

the exercise of probate , matrimonial, admiralty or insolvency juris d ic- e

e

r t

e

a ™ n c y ° tion, which confers u p o n or t akes a w a y from a n y p e r s o n a n y l e g ^ , l g m e n t s

c h a r a c t e r , or which d e c l a r e s a n y p e r s o n to b e entit led to a n y sug) j i r o b a t e

cha rac t e r , or to be entitled to a n y specific thing, no t a s a g a i n s t any, jurisdic-specified pe r son but absolutely, is relevant when the exis tence of atroy such legal charac te r or the title of any such pe r son to, any such thing, is relevant.

(2) Such judgment, order or decree is conclusive proof-(a) tha t a n y lega l c h a r a c t e r which it confers a c c r u e d a t the time

when such judgment , order or decree c a m e into operat ion; (b) that any legal charac ter to which it declares any such person to

be entitled, a cc rued to that p e r s o n at the time when such judgment, order or decree declares it to have accrued to that person;

(c) that any legal character which it takes away from any such person c e a s e d at the time from which s u c h j udgmen t , o rder or d e c r e e declares that it had ceased or should cease ; and

(d) that anything to which it dec lares any pe r son to be so entitled w a s the p rope r ty of t h a t p e r s o n a t the t ime from which s u c h j u d g m e n t , o rder or d e c r e e d e c l a r e s tha t it h a d b e e n or should be his property.

4 4 . J u d g m e n t s , o r d e r s or d e c r e e s o t h e r t h a n t h o s e m e n t i o n g ^ ^ f t c y s e c t i o n 4 3 a r e r e l e v a n t if t h e y r e l a t e to m a t t e r s o f a publ ic najuj"g f f e c t o f

re levan t to the inquiry, bu t s u c h j u d g m e n t s , orders or d e c r e e s arQuatgirfents, conclusive proof of that which they s ta te . orders or

decrees, other than those mentioned in section 43

18 NO. 6 Evidence Act 1967 1967

eevancyo 4 5 J u d g m e n t s , o rders or d e c r e e s , o the r t han t h o s e m e n t i o n e d in J U £ m e n s s ec t ions 4 2 , 43 a n d 44 , a re i r re levant u n l e s s the e x i s t e n c e of s u c h e c ' ' ° e r judgment , order or decree is a fact in i ssue , or is relevant under some tnantnose o t h e r p r o v i s i o n o f t h i s A c t . mentioned in sections 42 to 44

Fraud or 4 6 . Any par ty to a sui t or o t h e r p r o c e e d i n g m a y s h o w t h a t a n y collision in j udgment , order or dec ree which is re levant unde r sect ions 42 43 or obtaining 44 , and which h a s b e e n proved by the adve r se party, was delivered judgment or by a cour t no t c o m p e t e n t to deliver it, or w a s ob ta ined by fraud of incompetencycollusion. of court maybe P A R T V m proved RELEVANCY OF OPINIONS OF THIRD P E R S O N S

O p i n i o n s o f 4 7 . (1) W h e n the cour t h a s to form a n opinion u p o n a point of e x p e r t s foreign law, or of s c i ence or art, or a s to identity of handwrit ing or

finger or o t h e r i m p r e s s i o n s , op in ions u p o n t h a t po in t of p e r s o n s p o s s e s s i n g s p e c i a l k n o w l e d g e , skill, e x p e r i e n c e or training in s u c h foreign law, science or art or question as to identity of handwriting or finger or other impressions are relevant facts.

(2) Such persons are called experts. F a c t s b e a r i n g 4 8 . Fac ts , not otherwise relevant, are relevant if they support or are o p k i k m s i ncons i s t en t with the opinions of e x p e r t s , w h e n s u c h opinions are o f e x p e r t s re levant.

D , r 4 9 . (1) W h e n the cou r t h a s to form a n opin ion a s to the p e r s o n by w h o m a n y d o c u m e n t w a s written or s igned , the opinion of a n y

opinion as to J J * = > • > ! • J

handwriting p e r s o n acqua in ted with the handwriting o f the pe r son by whom it is supposed to be written or signed that is was or was not written or signed by that person, is a relevant fact.

(2) F o r the p u r p o s e s of s u b s e c t i o n (1), a p e r s o n is sa id to b e acqua in ted with the handwriting of ano the r pe r son when he h a s s e e n that p e r s o n write, or when he h a s rece ived d o c u m e n t s purporting to be written by that p e r s o n in a n s w e r to documen t s written by himself or u n d e r his authori ty a n d a d d r e s s e d to tha t p e r s o n or w h e n , in the ordinary course of b u s i n e s s , d o c u m e n t s purporting to be written by that person have been habitually submitted to him.

Relevancy of 50.-(1) W h e n the court h a s to form an opinion as to the exis tence opinion as to of any ge ne ral custom or right, the opinions as to the existence of such existence of c u s t 0 m or right of persons who would be likely to know of its existence right or . _. . , .

it it existed are relevant. custom

(2) For the p u r p o s e s of subsec t ion (1), the expres s ion "genera l custom or right" includes customs or rights common to any considerable class ofpersons.

R e l e v a n c y o f 5 1 . W h e n the c o u r t h a s to form a n opinion a s to-o p m i o n a s t o ^ m e u s a g e s a n ( j tenets of any body of men or family; or teneStsS'etc (b) the constitution and government of any religious or charitable

foundation; or (c) the meaning of words or terms used in particular districts or by

particular c l a s s e s of peop le , the opinion o fpersons having special means of knowledge thereon are relevant facts.

No. 6 Evidence Act 1967 1967

52. W h e n t h e c o u r t h a s to form a n op in ion a s to t he relation&>feiian Cy o f

of one p e r s o n to ano the r , the opinion, e x p r e s s e d by conduc t , a s tp i threon ex i s t ence of s u c h re la t ionship , of a n y p e r s o n who , a s a memberretftionship the family or otherwise, has spec ia lmeans ofknowledge on the subject, is a re levant fact:

Provided that such opinion shall not be sufficient to prove a m a r r i a g e P 3 6 4

in p r o c e e d i n g s u n d e r t h e M a t r i m o n i a l C a u s e s O r d i n a n c e , o 9 a t i 1 6

prosecutions under section 164 ofthe Penal Code. _ „ T . . . . „ . . . . . Grounds of 53. W h e n e v e r t he op in ion of a n y living p e r s o n is r e l e v a n t ^ m g n

grounds on which such opinion is based are also relevant. P A R T LX

RELEVANCY OF CHARACTER

54.-(I) In civil c a s e s t h e f ac t t h a t t h e c h a r a c t e r o f a n y per£frnacterin c o n c e r n e d is s u c h a s to r e n d e r p robab l e or improbab le a n y c c a M U * s t s imputed to him is irrelevant, except in so far as such character appears from facts otherwise relevant.

(2) In civil c a s e s the fact that the cha rac t e r of any p e r s o n is such as to affect the amount of damages which he ought to receive is relevant.

Good 55. In criminal p roceed ings the fact that the p e r s o n a c c u s e d iSi^fcftr in

good character is relevant. criminal cases

56.-(I) In criminal proceedings the fact that the accused person hftg a b a d cha rac t e r is irrelevant, un less ev idence h a s b e e n given thhat rh&, r m

has a good character, in which case it becomes relevant: criminal Provided that a previous conviction for any offence becomes relevant,8

after conviction in the case under trial, forthe purpose of affecting the sentence to be awarded by the court.

(2) Subsection (1) does not apply to cases in which tile bad character of any person is itself a fact in issue.

(3) Aprevious conviction is relevant as evidence o fbad character . (4) A p e r s o n charged and called as a witness in pu r suance of sub

section (3) of section 130 shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or b e e n convicted of, or b e e n c h a r g e d with, a n y offence o ther than t h a t w h e r e w i t h he is t h e n c h a r g e d , or t h a t he is o f b a d c h a r a c t e r , u n l e s s -

(a) the proof that he has committed or b e e n convicted of such other offence is admissible evidence to show that he is guilty ofthe offence wherewith he is then charged; or

(b) he has personally or by his advocate asked questions ofthe witness for the prosecut ion with a view to establ ishing 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 cha rac te r of the compla inant or the witness forthe prosecution; or

(c) he has given evidence against any other person charged with the same offence.

20 N o . 6 E v i d e n c e Act 1967 1967

D e f i n i t i o n o f 57. in s e c t i o n s 4 6 , 4 7 , 4 8 a n d 4 9 t h e w o r d " c h a r a c t e r " i n c l u d e s b o t h r e p u t a t i o n a n d d i s p o s i t i o n b u t , e x c e p t a s p r o v i d e d in s e c t i o n s 4 8 a n d 4 9 , e v i d e n c e m a y b e g i v e n o n l y o f g e n e r a l r e p u t a t i o n a n d g e n e r a l d i spos i t ion , a n d n o t of par t i cu la r ac t s by which r e p u t a t i o n or d i spos i t ion were s h o w n .

C H A P T E R m - P R O O F P A R T I

FACTS REQUIRING N O PROOF

F a , c t s „ 5 8 . N o f a c t o f w h i c h t h e c o u r t s h a l l t a k e j u d i c i a l n o t i c e n e e d b e j u d i c i a l l y t

n o t i c e d p roved . F a c t s o f 59,(1) T h e c o u r t s h a l l t a k e j u d i c i a l n o t i c e o f t h e fol lowing f a c t s : -w h i c h c o u r t S ucJ ic i a i 6 *-a) a l l w r i t t e n l aws , ru les , r egu la t ions , p roc l ama t ions , orders or not ices n o t i c e h a v i n g t h e force o f l a w n o w or h e r e t o f o r e m fo rce , o r h e r e a f t e r

to be in force, in a n y pa r t o f t h e Uni ted Republ ic ; (b) the e x i s t e n c e a n d title of soc ie t i e s or o t h e r b o d i e s the regis t ra t ion

o f w h i c h h a s b e e n notif ied in the G a z e t t e ; (c) the course of p roceeding of Par l iament; (d) all s e a l s of all the cour t s o f t h e Uni ted Repub l i c duly e s t a b l i s h e d

and of no ta r ies public , and all s ea l s which a n y p e r s o n is au thor ized to u s e by a n y written law;

(e) the a c c e s s i o n to office, n a m e s , t i t les , funct ions a n d s i g n a t u r e s o f the p e r s o n s filling forthe t ime b e i n g a n y publ ic office in a n y p a r t o f t h e U n i t e d R e p u b l i c , if t h e fac t o f t h e i r a p p o i n t m e n t to s u c h office is n o t i c e d in t h e G a z e t t e ;

(f) t h e , e x i s t e n c e , title a n d n a t i o n a l flag o f e v e r y S t a t e o r S o v e r e i g n r ecogn ized by the United Republ ic ;

(g) the divisions of t ime , the g e o g r a p h i c a l divisions o f t h e world, a n d public fes t ivals , fasts a n d ho l idays notified in the G a z e t t e ,

(h) t h e c o m m e n c e m e n t , c o n t i n u a n c e a n d t e r m i n a t i o n o f host i l i t ies b e t w e e n t h e U n i t e d R e p u b l i c a n d a n y o t h e r S t a t e o r b o d y o f p e r s o n s ;

(i) the n a m e s o f t h e m e m b e r s a n d officers o f t h e cour t , a n d o f t h e i r d e p u t i e s a n d s u b o r d i n a t e officers a n d a s s i s t a n t s , a n d a l s o o f all off icers a c t i n g in e x e c u t i o n o f its p r o c e s s , a n d o f al l a d v o c a t e s a n d o t h e r p e r s o n s a u t h o r i z e d b y l a w to a p p e a r o r a c t b e f o r e it.

(2) In all c a s e s within s u b s e c t i o n (1) a n d a l s o in m a t t e r s o f publ ic h i s t o r y , l i t e r a t u r e , s c i e n c e o r a r t , t h e c o u r t m a y r e s o r t for its a i d t o appropr ia te books or d o c u m e n t s of r e f e r e n c e .

(3) If t h e c o u r t is ca l l ed u p o n b y a n y p e r s o n to t a k e jud ic ia l n o t i c e o f a n y f a c t , it m a y r e f u s e t o d o s o u n l e s s a n d u n t i l s u c h p e r s o n p r o d u c e s a n y s u c h b o o k o r d o c u m e n t a s it m a y c o n s i d e r u t o , e n a b l e it t o d o s o .

No. 6 Evidence Act 1967 1067 21 6 0 . N o f a c t n e e d b e p r o v e d i n a n y c i v i l p r o c e e d i n g w h i c h t h e paFtrefe t h e r e t o o r t h e i r a g e n t s a g r e e t o a d m i t a t t h e h e a r i n g , o r w h i c h , b a ^ f e t e d in

t h e h e a r i n g , t h e y a g r e e t o a d m i t b y a n y w r i t i n g u n d e r t h e i r h a n c f s ^ ' ' o ' r 0 ' j e e c j " w h i c h b y a n y r u l e o f p l e a d i n g i n f o r c e a t t h e t i m e t h e y a r e d e e m e " f f f t § e "°

be proved h a v e a d m i t t e d b y t h e i r p l e a d i n g s :

P r o v i d e d t h a t t h e c o u r t m a y , i n i t s d i s c r e t i o n , r e q u i r e t h e f a c t s a d m i t t e d t o b e p r o v e d o t h e r w i s e t h a n b y s u c h a d m i s s i o n s .

P A R T 1 1

O R A L E V I D E N C E

6 1 . A l l f a c t s , e x c e p t t h e c o n t e n t s o f d o c u m e n t s , m a y b e p r e r ^ e d d e n c e o r a l e v i d e n c e .

6 2 . - ( 1 ) O r a l e v i d e n c e m u s t , i n a l l c a s e s w h a t e v e r , b e d i r e c t ; thaQridevidence t o s a y - must be direct

( a ) i f it r e f e r s t o a f a c t w h i c h c o u l d b e s e e n , it m u s t b e t h e e v i d e n c e o f a w i t n e s s w h o s a y s h e s a w it;

( b ) i f it r e f e r s t o a f a c t w h i c h c o u l d b e h e a r d , it m u s t b e t h e e v i d e n c e o f a w i t n e s s w h o s a y s h e h e a r d it;

( c ) i f it r e f e r s t o a f a c t w h i c h c o u l d b e p e r c e i v e d b y a n y o t h e r s e n s e , o r i n a n y o t h e r m a n n e r , it m u s t b e t h e e v i d e n c e o f a w i t n e s s w h o s a y s h e p e r c e i v e d it b y t h a t s e n s e o r in t h a t m a n n e r ;

( d ) i f it r e f e r s t o a n o p i n i o n o r t o t h e g r o u n d s o n w h i c h t h a t o p i n i o n i s h e l d , i t m u s t b e t h e e v i d e n c e o f t h e p e r s o n w h o h o l d s t h a t o p i n i o n o r , a s t h e c a s e m a y b e , w h o h o l d s it o n t h o s e g r o u n d s :

P r o v i d e d t h a t t h e o p i n i o n s o f e x p e r t s e x p r e s s e d i n a n y t r e a t i s e c o m m o n l y o f f e r e d f o r s a l e , a n d t h e g r o u n d s o n w h i c h s u c h o p i n i o n s a r e h e l d , m a y b e p r o v e d b y t h e p r o d u c t i o n o f s u c h t r e a t i s e i f t h e a u t h o r i s d e a d o r c a n n o t b e f o u n d , o r h a s b e c o m e i n c a p a b l e o f g i v i n g e v i d e n c e , o r c a n n o t b e c a l l e d a s a w i t n e s s w i t h o u t a n a m o u n t o f d e l a y o r e x p e n s e w h i c h t h e c o u r t r e g a r d s a s u n r e a s o n a b l e .

( 2 ) If o r a l e v i d e n c e r e f e r s t o t h e e x i s t e n c e o r c o n d i t i o n o f a n y m a t e r i a l t h i n g o t h e r t h a n a d o c u m e n t , t h e c o u r t m a y , i f i t t h i n k s fit, r e q u i r e t h e p r o d u c t i o n o f s u c h m a t e r i a l t h i n g f o r its i n s p e c t i o n .

P A R T m

D O C U M E N T A R Y E V I D E N C E

6 3 . T h e c o n t e n t s o f d o c u m e n t s m a y b e p r o v e d e i t h e r b y p r i m a J y o a f c f b y s e c o n d a r y e v i d e n c e . contents of

documents 6 4 ( 1 ) P r i m a r y e v i d e n c e m e a n s t h e d o c u m e n t i t s e l f p r o d u c e d f o r

t h e i n s p e c t i o n o f t h e c o u r t . ( 2 ) W h e r e a d o c u m e n t i s e x e c u t e d i n s e v e r a l p a r t s , e a c h pai f tnt tary

p r i m a r y e v i d e n c e o f t h e d o c u m e n t . evidence

( 3 ) W h e r e a d o c u m e n t i s e x e c u t e d i n c o u n t e r p a r t , e a c h c o u n t e r p a r t b e i n g e x e c u t e d b y o n e o r s o m e o f t h e p a r t i e s o n l y , e a c h c o u n t e r p a r t i s p r i m a r y e v i d e n c e a s a g a i n s t t h e p a r t i e s e x e c u t i n g it.

22 No. 6 EVIDENCE ACT 1967 1967

(4) W h e r e a n u m b e r of d o c u m e n t s are all m a d e by one uniform p rocess , as in the ca se of printing, lithography or photography, each is pr imary e v i d e n c e o f the con ten t s o f t he res t ; bu t w h e r e they a re all copies of a c o m m o n original, t hey a re no t pr imary e v i d e n c e o f the contents ofthe original.

65. Secondary evidence includes-(a) certified copies given under the provisions hereinafter contained; (b) copies made from the original by mechanica l process which in

themselves ensure the accuracy ofthe copy, and copies compared with such copies,

(c) copies made from or compared with the original; (d) counterpar ts of d o c u m e n t s as aga ins t the part ies who did not

execute them; (e) oral accounts ofthe contents of a document given by some person

who has himself s e e n it.

66. D o c u m e n t s m u s t be proved by primary evidence excep t in the cases hereinafter mentioned.

67.-(I) Secondary evidence may be given ofthe existence, condition or contents of a document in the following cases :

b y s e c o n d a r y e v i d e n c e when the original is shown or appears to be in the possess ion or

p o w e r of-(i) the p e r s o n a g a i n s t w h o m the d o c u m e n t is s o u g h t to b e

proved; or (ii) a person out of reach of, or not subject to, the process ofthe

court; or (iii) a p e r s o n legally b o u n d to p roduce it, a n d when , after the

notice specified in section 68, such person does not produce it;

(b) when the exis tence , condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has b e e n destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect , produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable; (e) when the original is a public d o c u m e n t within the mean ing of

section 83; ( 2 ) When the original is a document of which a certified copy is

p e r m i t t e d by this Act or by a n y wri t ten l a w to b e g iven in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the genera l result ofthe whole collection.

S e c o n d a r y e v i d e n c e

P r o o f o f d o c u m e n t s b y p r i m a r y e v i d e n c e

P r o o f o f d o c u m e n t s

No. 6 EVIDENCE ACT 1967 1967 23

(2) In the cases mentioned in paragraphs (a), (c) and (d) of subsection (1) any secondary evidence ofthe contents ofthe document is admissible.

(3) In the case mentioned in paragraph (b) of subsection (1) the written admission is admissible.

(4) In the cases mentioned in paragraphs (e) and (f) of subsection (1) a certified copy ofthe document , but no other kind of secondary evidence, is admissible.

(5) In the case mentioned in paragraph (g) of subsection (1) evidence may be given as to the general result ofthe accounts or documents by any person who has examined them, and who is skilled in the examination of such accounts or documents.

68. Secondary evidence ofthe contents ofthe documents re fe rftott st®s to in paragraph (a) of subsection (1) of section 67 s h a l l not be given unloiSjsice to the party proposing to give such secondary evidence has previ(81iSSi'r5?e

given to the party in whose posse ssion or power the document is, or to his advocate, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as a court considers reasonable in the circumstances ofthe case:

Provided that such notice shall not be required in order to render secondary evidence admissible in any ofthe following cases: —

(a) when the document to be proved is itself a notice; (b) when, from the nature ofthe case, the adverse party must know

that he will be required to produce it; (c) when it appears oris proved that the adverse party has obtained

possession ofthe original by fraud or force; (d) when the adverse party or his agent has the original in court; (e) when the adverse party or his agent has admitted the loss ofthe

document; (f) when the person in possession ofthe document is out ofreach

of, or not subject to, the process ofthe court; (g) in any other case in which the court thinks fit to dispense with

the requirement.

69. If a document is alleged to be signed or to have been wrfife0riof

wholly or in p a r t by any person, the signature or the handwriting (W§j\vritine much ofthe document as is alleged to be in that person's handwriting

ot person must be proved to be in his handwriting. „ . .

r b alleged to have signed or writte n documents

70. If a documen t is required by l a w to be a t tes ted it s h a l l nd t°fefe>f used as evidence until one attesting witness at least has been caHg^Jufep the purpose of proving its execution, if there is an attesting witrafittesument alive and subject to the process ofthe court and capable of grvajpLg-ed by evidence. law to be

attested

24 NO. 6 Evidence Act 1967, 1961

P r o o f w h e r e n o a r t e s t i n g w i t n e s s f o u n d

Admission of execution by party to attested document

Proof when attesting witness denies the execution Proof of document not required by law to be attested Comparison of signature, writing or s e a 1 with others admitted or proved

D e f i n i t i o n s

M o d e o f p r o o f o f e n t r i e s in b a n k e r ' s b o o k s P r o o f t h a t b o o k is a b a n k e r ' s b o o k

7 1 . If no such attest ing witness can be found or when such witness is n o t sub j ec t to the p r o c e s s o f t h e Cour t o r i s i n c a p a b l e of giving evidence, it mus t be proved that the attestation of one attesting witness a t l e a s t is in his handwr i t ing , a n d t h a t the s igna tu re o f t h e p e r s o n executing the document is in the handwriting of that person. 72. The admission of a party to an at tes ted document of its execution by himself shall be sufficient proof of its execution as against him, though

it be a document required by law to be attested.

73. If the attesting witness denies or does not recollect the execution of the document , its execution may be proved by other evidence .

74. An a t t e s t e d d o c u m e n t no t requi red by law to be a t t e s t e d m a y be proved as if it were unattested.

75,(1) In order to ascer ta in whe the r a s ignature , writing or s e a l is that ofthe person by whom it purports to have b e e n written or m a d e ,

any signature, writing or seal , admitted or proved to the satisfaction of t he - c o u r t to h a v e b e e n wr i t ten or m a d e by t h a t p e r s o n , m a y b e compared with the one which is to be proved, although that s ignature, writing or s ea l has not been produced or proved for any other purpose .

(2) The court may direct any person in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person.

(3) This section applies also, with any n e c e s s a r y modifications, to finger impressions.

P A R T IV BANKERS' BOOKS

76. Fo r the purposes ofthis Par t the expression-"bank" or " b a n k e r " m e a n s a n y p e r s o n carrying on the b u s i n e s s of

banking in the United Republic , and for the p u r p o s e s of sect ions 76 , 77 a n d 78 inc ludes a n y p e r s o n carrying on the b u s i n e s s of banking in Uganda or Kenya;

"court" m e a n s the court, j udge , arbitrator or pe r son or pe r sons before whom a legal proceeding is held or taken;

"legal proceeding" m e a n s any civil or criminal proceeding or inquiry, including an arbitration, in which evidence is or may be given in the United Republic, and forthe purposes of section 81 includes any such proceeding or inquiry in Kenya or in Uganda.

77. Subject to this Act, a copy of any entry in a banker 's book shall in all legal p roceed ings be rece ived as prima facie ev idence of such entry and of the mat te r s , t ransact ions and accounts therein recorded.

78,(1) A copy of an entry in a banker ' s book shall not be received in evidence under this Act unless it be first proved that the book was at the time o f the making o f the entry one o f the ordinary books o f the bank, and that the entry was m a d e in the usua l and ordinary course of b u s i n e s s , and that the book is in the cus tody or control of the bank.

N O . 6 Evidence Act 1967 1 9 6 7 25

(2) Such proof may be given by a partner or officer ofthe bank, and may be given orally or by an affidavit sworn before any commissioner for oaths or person authorized to take affidavits.

79.-(I) A copy of a n entry in a banker ' s b o o k shal l no t be rece ived in evidence under this Act unless it be further proved that the copy has been examined with the Original entry and is correct.

,(2) Such proof shal lbe given by some person who, has examined the copy with the original entry, and may be given either orally or by an affidavit sworn beiore any commissioner for oaths or person authorized to t ake affidavits.

80. A b a n k e r or officer of a b a n k shal l no t in a n y lega l p r o c e e d S a s in which to which the bank is not a party, be compellable to produce any banfca«sr book the contents ofwhich can be P roved u n d e r this Act, or to appeiaj a s a wi tness to prove the m a t t e r s , t r a n s a c t i o n s a n d a c c o u n t s thOTB4feble

recorded, unless by order of a court made for special cause . to produce book etc.

81. On the application of any party to a legal proceeding a court M§y u r t m a > ' o rder tha t s u c h party be a t liberty to in spec t a n d take copies of $fty r

entries in a banker 's book for any ofthe purposes of such proceedi i f j^ 0 1 1 0 1 1 ' An o r d e r u n d e r this s e c t i o n m a y be m a d e e i t h e r with or wi thou t s u m m o n i n g the b a n k or a n y o the r party, a n d sha l l be s e r v e d on the bank three clear days before the s a m e is to be obeyed unless the court otherwise directs.

82. The costs of any application to a court u n d e r or for the purpose** ofthis par t ofthis Act, a n d the cos ts of anything done or to be done u n d e r a n o r d e r o f a c o u r t m a d e u n d e r or for the p u r p o s e s o f this part ofthis Act shall be in the discretion of the court which may order the same or any part thereof to be paid to any party by the bank where the s a m e have b e e n occas ioned by any default or delay on the part of the bank . Any s u c h order a g a i n s t a b a n k m a y be enforced as if the bank was a party to the proceeding.

P A R T V

PUBLIC DOCUMENTS

83 . The following d o c u m e n t s are public documents— P u b l i c documents

(a) documents forming the acts or records ofthe acts-

(i) ofthe President ofthe United Republic;

(ii) of official bodies and tribunals; and

(iii) Of Public officers, legislative, judicial and executive; (b) Public records kept in the United Republic of Private documents.

84. All documents other than public documents are private. Private documents


c^r t i f i ed^ 35 ( i ) Every public officer having the custody of a public document p u b i i c S ° which any person has a right to inspect shall give that person on demand d o c u m e n t s a copy of it on p a y m e n t of the lega l fees therefore , t o g e t h e r with a

certificate written at the foot of such copy that it is a true copy of such d o c u m e n t or pa r t thereof, a s the c a s e m a y b e , a n d s u c h certificate shall be dated and subscribed by such officer with his name and official title, and shall be sealed whenever such officer is authorized by law to make use of a seal , and such copies so certified shall be called certified copies.

(2) Any officer who by the ordinary course of his official duty is author ized to deliver copies of public d o c u m e n t s shall be d e e m e d to have the custody of such documents within the meaning ofthis section.

Proof of documents by u 86. Certified copies of public d o c u m e n t s m a y b e p r o d u c e d in proof production o f ° f m e conten ts o f the d o c u m e n t s or parts o f the d o c u m e n t s o fwhich certified they purport to be copie s. copies

P r o o f o f 87. The following public documents may be proved as follows: ~ o t h e r off ic ial d o c u m e n t s (a) ac t s , orders or notifications o f the G o v e r n m e n t of the United

Republ ic , the Executive o fZanz ibar , the High Commiss ion or the Organization or any service thereof, or any local authority or of a ministry or department ofany ofthe foregoing-(i) by the records ofthe service, authority, ministry, or depart

ment certified by the head thereof; or (ii) by any documen t purporting to be printed or published by

order ofthe Government or other body concerned; (b) the proceedings ofthe legislatures ofthe United Republic and of

the Eas t African Central Legislative Assembly-by the journals of those bodies respectively, or by published Acts or abs t r ac t s , or by cop ies , purporting to be printed by order of Government or the Common Services Authority;

(c) proclamations, orders or regulations i s sued by the Pres ident of the United Republic or of Zanzibar or by any depar tment of the G o v e r n m e n t o f t h e Un i t ed R e p u b l i c or o f t h e E x e c u t i v e of Z a n z i b a r -

by copies or extracts conta ined in the Gazelle or purporting to be printed by the Government Printer;

(d) the acts ofthe executive or the proceedings ofthe legislature of a foreign country—

by j o u r n a l s p u b l i s h e d by the i r au thor i ty , o r c o m m o n l y received in that country as such, or by a copy certified under the s e a l o f t h e coun t ry or s o v e r e i g n , or by a recogni t ion thereof in some written law;

(e) the p roceed ings of a municipal body in the United Republ ic -by a copy of such p roceed ings , certified by the legal k e e p e r thereof, or by printed b o o k purporting to be publ i shed by the authority of such body;

No. 6 Evidence Act 1967 1967 27

(f) public documents of any other class in a foreign country by the original or by a copy certified by the legal keepe r thereof, with a certificate under the seal of a foreign service officer or diplomatic r e p r e s e n t a t i v e of a C o m m o n w e a l t h country, t ha t the copy is duly certified by the officer having the legal custody ofthe original, and upon proof of the charac te r of the documen t s according to the law of the foreign country.

PAR T VI PRESUMPTIONS AS TO DOCUMENTS

88-(l) T h e c o u r t s h a l l p r e s u m e to b e g e n u i n e e v e r y docum^rr t jmpt ion purporting to be a certificate, certified copy or other document , whifiho

f ineness (a) is by law declared to be admissible as evidence of any particiHffr511

„ . of certified f a c t : copies (b) purports to be duly certified by any public officer in the United

Republic; and (c) is substantial ly in the form and purports to be e x e c u t e d in the

manner directed by law in that behalf. (2) The court shall also presume that any officer by whom any such

document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.

89. W h e n e v e r any d o c u m e n t is p r o d u c e d before any court, purportinignption to be a record or m e m o r a n d u m o f t h e e v i d e n c e , or of a n y par t of stlje e v i d e n c e , g iven by a wi tness in a judicial p r o c e e d i n g or before dwpyments officer au thor ized by law to take such ev idence , a n d purporting t op ibduced as

signed by a judge or magistrate, or by any such officer as aforesaid, t M P r d o f

C O U r t S h a l l p r e s u m e - evidence

(a) that the document is genuine; (b) that any statements as to the circumstances in which it was taken,

purporting to be m a d e by the pe r son signing it, are true; and (c) that such evidence was duly taken.

90--(l) The court shal l p r e s u m e the g e n u i n e n e s s of every documeaatumption purporting to be the Gove rnmen t Gazette ofthe United Republic cas®f Zanzibar , or to be a n e w s p a p e r or journal , or to be a copy of a prf^gt8 e s ' Act o f the Nat ional Assembly printed by the G o v e r n m e n t Printer, affilP aP e r s> of every document purporting to be a document directed by any lawiWe Acts

b e k e p t by a n y p e r s o n , if s u c h d o c u m e n t is k e p t subs tant ia l ly infltVe form required by law and is produced from proper custody. AsYembly

(2) For the purposes of subsection (1), documents are said to be ir^nd o ther proper custody if they are in the place in which, and under the c a r e c t e f u m e n t s

the p e r s o n with w h o m , t hey would natural ly b e ; b u t n o c u s t o d y is improper if it is proved to have had a legitimate origin, or if the circums t a n c e s o f t h e par t icu lar c a s e a re s u c h a s to r e n d e r s u c h a n origin probable.

2 8 No. 6 Evidence Act 1967 1967

P r e s u m p t i o n c o u r t s h a l l p r e s u m e tha t m a p s or p lans purport ing to be as to m a p s . ^ r r r r o o r p i a n s made by the authority of Government were so m a d e , and are accura te ; m a d e by b u t m a p s or plans made forthe purposes of any legal proceeding mus t authority of b e p r o v e c i t o b e accurate. G o v e r n m e n t

P r e s u m p t i o n 9 2 . The court shall pre sume the genu ineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any o f the laws of tha t country, and of

every b o o k purport ing to conta in reports of dec is ions o f the courts of any country.

collections o f l aws and reports of decis ions

P r e s u m p t i o n 9 3 . The cour t shal l p r e s u m e t h a t pr ivate d o c u m e n t s purpor t ing to as to private be e x e c u t e d out o f t he United Republ ic were duly e x e c u t e d a n d the e x e c u t e d ' 8 execution duly authenticated if-outside the u n i t e d (a) in the c a s e of s u c h d o c u m e n t e x e c u t e d in U g a n d a , K e n y a , Republ ic M a l a w i o r Z a m b i a it p u r p o r t s t o b e a u t h e n t i c a t e d b y a

magis t ra te , registrar or judge under the sea l of the court or by a notary public u n d e r his s ignature and s e a l of office;

(b) in the case of such document executed in Uganda, Kenya, Malawi or Zambia which affects or re la tes to proper ty not e x c e e d i n g in amount or value of Shs . 5,000/= there purports to be appended to or endorsed on such document a s ta tement signed by a magistrate or a jus t ice o f t h e p e a c e -(i) that the person executing such document is a person known

to him: or

(ii) that two other persons known to him have separately testified before h im t h a t the p e r s o n e x e c u t i n g s u c h d o c u m e n t is known to each of them-,

(c) in the case of such document executed in any other place outside the Uni ted R e p u b l i c if it purpor t s to be a u t h e n t i c a t e d by the signature and sea l of office-

(i) of a foreign serv ice officer of the Uni ted Repub l i c or a diplomatic r ep resen ta t ive of a C o m m o n w e a l t h country in such place; or

(ii) of a n y S e c r e t a r y of S t a t e , Minister, U n d e r - S e c r e t a r y of State or any other person in such foreign place, who shall be shown by the certificate of the foreign service officer of the United Republ ic or a diplomatic represen ta t ive of a C o m monwealth country in such place, to be duly authorized under the law of such place to authenticate such document .

P r e s u m p t i o n _ 9 4 . The court shal l p r e s u m e that every d o c u m e n t purporting to be a as to powers power of attorney and to have been executed before and authenticated of a t torney foy a n o t a r y publ ic , or c o m m i s s i o n e r for o a t h s , a n y cour t , j u d g e ,

magistrate, registrar, foreign service officer or diplomatic representative of a Commonwealth country, was so executed and authenticated.


95. The cour t m a y p r e s u m e tha t a n y d o c u m e n t purpor t ing to t y g ^ m p t i o n certified copy of any judicial record o f a n y foreign country is genuh*e t 0 certified a n d accura te , if the d o c u m e n t purports to be certified in any m a H ^ 0

which is certified by a n y foreign se rv ice officer or d iplomat ic i je tHcia l preventative of a Commonweal th country to be the m a n n e r comm^n^ ,^ in use in that country for the certification of copies of judicial records .

96. The court may p resume that any book to which it may refer Jeepumption information on m a t t e r s of Publ ic or g e n e r a l in teres t , a n d tha t a

a

n ^ b o o k s > published map or chart, the s tatements of which are relevant facts ,"!fnd a n

which is produced for its inspection, was written and published by uie s

person , and at the time and place, by whom or at which it purports to have been written or published.

97. T h e c o u r t m a y p r e s u m e t h a t a m e s s a g e , f o r w a r d e d frctasamption telecommunications office to the person to whom such message purffpTts to be a d d r e s s e d , co r responds with a m e s s a g e delivered for t r a n s r r f 8 ^ m u m " sion at the office from which the m e s s a g e purports to be sent ; but affie s

. .. ° r r ' messages court shall not make any presumption as to the person by whom such m e s s a g e was delivered for transmission. Presumption

98. The court shall p resume that every document called for a n d d u e p roduced after notice to produce was a t tes ted , s t a m p e d and exeesateidms

. • . . . etc., of in the m a n n e r required by law. documents

not produced 99.-(I) W h e n a n y d o c u m e n t , purporting or P r o v e d to be not lQ§-£Sumption

than twenty yea r s old, is p r o d u c e d from any cus tody which the 0©tert in the particular ca se considers proper, the court may p re sume tf dat uth ie i t s

signature and every other part of such document , which purports tro"lS'e>'ears

in the handwriting of any particular p e r s o n , is in that pe r son ' s ha°rra-writing, and, in the case of a document executed or at tested, that it was duly execu ted and a t tes ted , by the pe r sons by whom it purports to be executed and attested.

(2) For the p u r p o s e s of subsec t ion (1), documen t s are said to be in proper custody if they are in the place in which, and under the care of the pe r son with whom, they would naturally b e ; but no cus tody is improper if it is proved to have had a legitimate origin, or if the circums t a n c e s o f t h e par t icu la r c a s e a re s u c h a s to r e n d e r s u c h a n origin probable.

P A R T v n O F T H E E X C L U S I O N O F O R A L B Y D O C U M E N T A R Y E V I D E N C E

100- . ( I ) W h e n the t e r m s o f a c o n t r a c t , or of a g r a n t , or of anyvidence of o t h e r d i spos i t ion o f p r o p e r t y , h a v e b e e n r e d u c e d to the form 6ePW o f

d o c u m e n t , a n d in all c a s e s in which a n y ma t t e r is requi red by la vv-° f$ ' a c t s ' be r e d u c e d to the form of a d o c u m e n t , no ev idence shal l be give¥Pfi s a n d

p r o o f o f t h e t e r m s o f s u c h c o n t r a c t , g r a n t or o t h e r d i s p o s i t i o n ° o ¥ s i t i o n s

proper ty , or of s u c h m a t t e r e x c e p t the d o c u m e n t itself, or secondf i ry ' ° n s

r r J r oiproperty evidence of its contents in ca se s in which secondary evidence is ad-mjftedto sible under the provisions hereinbefore contained. form of

(2) Notwithstanding subsection (1), when a public officer is required document by law to b e a p p o i n t e d in writing, a n d w h e n it is s h o w n t h a t a n y particular person has acted as such officer, the writing by which he is appointed need not be proved.


(3) Wills admitted to probate in the United Republic may be proved by the p r o b a t e .

(4) Subsection (1) applies equally to ca se s in which the contracts, g ran t s or d ispos i t ions of p roper ty referred to are con t a ined in one document, and to cases in which they are contained in more documents than one .

(5) When there are more originals than one, one original only need be proved.

(6) The s ta tement , in any documen t whatever , of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.

E x c l u s i o n o f 101. When the terms of any such contract, grant or other disposition e v i d e n c e o f Q f property, or any mat te r required by law to be r e d u c e d to the form a g r e e m e n t of a document, have been proved according to section 100, no evidence

of any oral a g r e e m e n t or s t a t emen t shall be admitted, as b e t w e e n the parties to any such instrument or their representa t ives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms:

P r o v i d e d tha t -(a) any fact may be proved which would invalidate any document ,

or which would entitle any person to any decree or order relating t h e r e t o , s u c h a s fraud, in t imidat ion, illegality, w a n t o f d u e execut ion , w a n t of capac i ty in a n y contract ing party, w a n t or failure of considera t ion, or mistake in fact or law;

(b) the exis tence of any s e p a r a t e oral a g r e e m e n t as to any mat te r on which a d o c u m e n t is silent, a n d which is no t incons i s t en t with its t e rms , m a y be proved , a n d in cons ider ing w h e t h e r or not this p a r a g r a p h ofthis proviso appl ies , the court shal l have regard to the degree of formality ofthe document;

(c) the ex i s t ence of a n y s e p a r a t e oral a g r e e m e n t , consti tuting a condition p receden t to the attaching of any obligation under any such contract, grant or disposition of property, may be proved;

(d) the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property may be proved, except in c a s e s in which such contract, grant or dis. position of proper ty is by law required to be in writing or h a s b e e n registered according to the law in force for the time being as to the registration of documents;

(e) any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of such incident would not be r e p u g n a n t to or i n c o n s i s t e n t with t he e x p r e s s t e r m s o f t h e contract;

(f) a n y fact m a y b e p r o v e d wh ich s h o w s in w h a t m a n n e r the l anguage of a documen t is related to existing facts.

NO. 6 EVIDENCE ACT 1967 1967 31

1 0 2 . W h e n t h e l a n g u a g e u s e d in a d o c u m e n t i s , o n its f a c e , a lubi ion of g u o u s o r d e f e c t i v e , e v i d e n c e m a y n o t b e g i v e n o f f a c t s w h i c h w o u I S d , e n c e t 0

° ' J ° explain s h o w its m e a n i n g o r s u p p l y its d e f e c t s . p a t e n t

ambiguity

1 0 3 . W h e n l a n g u a g e u s e d in a d o c u m e n t is p l a i n in i tself , a n d w ! j e i B l o n o f

it a p p l i e s a c c u r a t e l y t o e x i s t i n g f a c t s , e v i d e n c e m a y n o t b e givefii^ffl 0 6

s h o w t h a t it w a s n o t m e a n t to a p p l y t o s u c h f a c t s . application of d o c u m e n t to existing facts

1 0 4 . W h e n l a n g u a g e u s e d in a d o c u m e n t is p l a i n in i t se l f , b u t isE-wuance a s m e a n i n g in r e f e r e n c e t o e x i s t i n g f a c t s , e v i d e n c e m a y b e g i v e n t o s t a t w t t h a t it w a s u s e d in a p e c u l i a r s e n s e . ambiguity 1 0 5 . W h e n t h e f a c t s a r e s u c h t h a t t h e l a n g u a g e u s e d m i g h t as

b e e n m e a n t t o a p p l y t o a n y o n e , a n d c o u l d n o t h a v e b e e n m e a ° r t t F f e a t l o n

r i • • o f l a n g u a g e a p p l y t o m o r e t h a n o n e , o f s e v e r a l p e r s o n s o r t h i n g s , e v i d e n c e m a y h J r -g i v e n o f f a c t s w h i c h s h o w w h i c h o f t h o s e p e r s o n s o r t h i n g s it v\sj,giy to .

r c a n i o n e

i n t e n d e d t o a p p l y t o . o n ] y o f

s e v e r a l p e r s o n s

1 0 6 . W h e n t h e l a n g u a g e u s e d in a d o c u m e n t a p p l i e s p a r t l y t o omeidSr&t as o f e x i s t i n g f a c t s , a n d p a r t l y t o a n o t h e r s e t o f e x i s t i n g f a c t s , b u t t M P p H c a t l o n

w h o l e o f it d o e s n o t a p p l y c o n e c t l y to e i t h e r , e v i d e n c e m a y b e g i v e n n t o ^ 8 " * 8 6

s h o w t o w h i c h o f t h e t w o it w a s m e a n t t o a p p l y . ^ ° ° e °

1 0 7 . E v i d e n c e m a y b e g i v e n t o s h o w t h e m e a n i n g o f i l l eg ib le o r jfgjf o f f a c t s

c o m m o n l y in te l l ig ib le c h a r a c t e r s , o f f o r e i g n , o b s o l e t e , t e c h n i c a l , l o < f ( ^ ] J e a n m g

a n d r e g i o n a l e x p r e s s i o n s , o f a b b r e v i a t i o n s a n d o f w o r d s u s e d p e c u l i a r S e n s e . c h a r a c t e r s ,

etc. 1 0 8 . P e r s o n s w h o a r e n o t p a r t i e s to a d o c u m e n t , o r t h e i r r ep resse f t i&rce of

t i v e s in i n t e r e s t , m a y g i v e e v i d e n c e o f a n y f a c t s t e n d i n g t o s h o W ' S ' ™ c o n t e m p o r a n e o u s a g r e e m e n t v a r y i n g t h e t e r m s o f t h e d o c u m e n t ™ 6 , " b y

r b J b third part ies 1 0 9 . N o t h i n g in th i s P a r t o f t h i s C h a p t e r s h a l l b e t a k e n t o a f f e c t th&aving of

p r o v i s i o n s o f a n y o t h e r w r i t t e n l a w a s t o t h e c o n s t r u c t i o n o f wills o p r ° ™ i o n s of J t t t i . . t . written law

o t h e r t e s t a m e n t a r y d i s p o s i t i o n s . a s t 0 c o n s t r u c t i o n

of wills, e tc .

C H A P T E R I V — - P R O D U C T I O N A N D E F F E C T O F E V I D E N C E

P A R T I

THE BURDEN OF P R O O F

110-(1) W h o e v e r d e s i r e s a n y c o u r t t o g i v e j u d g m e n t a s t o a n j y r d e n o f l e g a l r i g h t o r l i ab i l i t y d e p e n d e n t o n t h e e x i s t e n c e o f f a c t s w h i c h b i e o f

a s s e r t s m u s t p r o v e t h a t t h o s e f a c t s e x i s t .

( 2 ) W h e n a p e r s o n is b o u n d t o p r o v e t h e e x i s t e n c e o f a n y f a c t , it is s a i d t h a t t h e b u r d e n o f p r o o f l i e s o n t h a t p e r s o n .

1 1 1 . T h e b u r d e n o f p r o o f i n a s u i t o r p r o c e e d i n g l i e s o n t h j a t v h o m

p e r s o n w h o w o u l d fai l if n o e v i d e n c e a t a l l w e r e g i v e n o n e i t h e r s i t e d e n o f

proof lies 1 1 2 . T h e b u r d e n o f p r o o f a s t o a n y p a r t i c u l a r f a c t l i es o n t h a t p e r s o n

w h o w i s h e s t h e c o u r t t o b e l i e v e in its e x i s t e n c e , u n l e s s it is p rov ided%y l ® n o f

a n y l a w t h a t t h e p r o o f o f t h a t f a c t s h a l l lie o n a n y p a r t i c u l a r p e r s o l i . 0 °, particular fact


Burden of proving fact to be p roved to m a k e ev idence admiss ible

Exten t of bu rden of proof on a c c u s e d

B u r d e n o f p r o v i n g feet e s p e c i a l l y w i t h i n k n o w l e d g e in civi l p r o c e e d i n g s B u r d e n o f p r o v i n g d e a t h o f p e r s o n k n o w n t o h a v e b e e n a l i v e w i t h i n t h i r t y y e a r s B u r d e n o f Proving tha t p e r s o n is alive who h a s not b e e n h e a r d o f f o r s e v e n y e a r s B u r d e n o f p r o o f a s to relationship in the c a s e s o f p a r t n e r s , landlord a n d t e n a n t , p r i n c i p a l a n d a g e n t

113. The burden ofproving any fact n e c e s s a r y to be proved in order to enable any person to give evidence of any other fact is on the person

who wishes to give such evidence.

114,(1) W h e n a pers on is a ecus ed of a n y offence, the b u r d e n of proving the exis tence of c i r cums tances bringing the c a s e within any exception or exemption from, or qualification to, the operation of the law creat ing the offence with which he is cha rged a n d the bu rden of proving a n y fact especia l ly within the knowledge of s u c h p e r s o n is upon him:

Provided that such bu rden shall be d e e m e d to be d i scha rged if the cour t is satisfied by e v i d e n c e given by the prosect i t ion, w h e t h e r in cross-examination or otherwise, that such circumstances or facts exist:

P r o v i d e d further t h a t the p e r s o n a c c u s e d sha l l be ent i t led to be acquitted ofthe offence with which he is charged if the court is satisfied that the evidence given by ei ther the prosecution or the defence creates a r ea sonab le doubt as to the guilt of the a c c u s e d p e r s o n in r e s p e c t of that offence.

(2) Nothing in this section shall--" (a) prejudice or diminish in any re spec t the obligation to establish

by evidence according to law any ac ts , omissions or intentions which are legally n e c e s s a r y to constitute the offence with which the person accused is charged; or

(b) impose on the prosecution the burden ofproving that the circumstances or facts described in subsection (1) do not exist; or

(e) affect the b u r d e n p l aced u p o n a n a c c u s e d p e r s o n to prove a defence of intoxication or insanity.

115 . In civil p r o c e e d i n g s , w h e n a n y fact is espec ia l ly within the knowledge of any person, the burden ofproving that fact is upon him.

116. When the quest ion is whe ther a m a n is alive or dead , and it is shown that he was alive within thirty yea r s , the burden of proving that he is dead is on the person who affirms it.

117. Notwithstanding section 116, when the question is whether a man is alive or d e a d , a n d it is p roved tha t he h a s no t b e e n h e a r d of for s e v e n yea r s by those who would naturally have h e a r d of him if he had been alive, the burden ofproving that he is alive is shifted to the p e r s o n who affirms it. 118. When the question is whether persons are partners, landlord and tenant , or principal and agent , and it has b e e n shown that they have

b e e n acting as such, the burden of proving that they do not s tand or have cea sed to stand, to each other in those relationships respectively, is o n the p e r s o n w h o affirms it.


119. W h e n the q u e s t i o n is w h e t h e r a n y p e r s o n is o w n e r of anyHnaigi of o f w h i c h h e is s h o w n to b e in p o s s e s s i o n , t h e b u r d e n o f p r o v m g J W g ^ ^ h e is n o t t h e o w n e r is o n t h e p e r s o n w h o affirms t h a t h e i s , n o t t h e owner.

Proo i oi 120 . W h e r e t h e r e is a q u e s t i o n a s to the g o o d faith o f a t r an s aôktOfffith

b e t w e e n pa r t i e s , one of w h o m s t a n d s to the o the r in a posi t ion of Strive c o n f i d e n c e , t h e b u r d e n o f p r o v i n g t h e g o o d faith o f t h e t r a n s a c t i o n 0 ' 1 0 1 1 8

where one on the pa r ty w h o is in a pos i t ion of active c o n f i d e n c e - p a r r y K m

relation of active confidence

1 2 1 . The fact t h a t a n y p e r s o n w a s b o m dur ing the continuancegmftifdunng a va l id m a r r i a g e b e t w e e n his m o t h e r a n d a n y m a n , o r wi thin f W S a g e

h u n d r e d a n d e igh ty d a y s a f te r its d i s s o l u t i o n , t h e m o t h e r remainifre 1 8 1™ unmar r i ed , s h a l l b e conclusive proof tha t he is the legitimate son of.tRat

1 ^ legitimacy m a n , u n l e s s it c a n b e s h o w n t h a t t h e p a r t i e s to t h e m a r r i a g e h a d n o a c c e s s to e a c h o t h e r a t a n y t ime w h e n h e cou ld h a v e b e e n b e g o t t e n .

1 2 2 . T h e c o u r t m a y infer t h e e x i s t e n c e o f a n y fac t w h i c h it thiixk^rt may likely to h a v e h a p p e n e d , r e g a r d b e i n g h a d to t h e c o m m o n cour$>ess©fie n a t u r a l e v e n t s , h u m a n c o n d u c t a n d p u b l i c a n d p r i v a t e businesxisikiice of t he i r r e l a t ion to t h e facts o f t h e p a r t i c u l a r c a s e . certain facts

P A R T 11 E S T O P P E L

1 2 3 . W h e n o n e p e r s o n h a s , b y h i s d e c l a r a t i o n , a r t o r omis^ffiPff;1

in ten t iona l ly c a u s e d or p e r m i t t e d a n o t h e r p e r s o n to b e l i e v e a t h ing to b e t r ue a n d to a c t u p o n s u c h belief, n e i t h e r h e n o r his r e p r e s e n t a t i v e s h a l l b e a l l o w e d , in a n y su i t o r p r o c e e d i n g b e t w e e n h i m s e l f a n d s u c h p e r s o n o r his r e p r e s e n t a t i v e , to d e n y t h e t ru th o f t h a t t h ing .

124 . N o t e n a n t o f i m m o v a b l e p r o p e r t y , o r p e r s o n s c la iming t h r o u g h d o f

s u c h t e n a n t , shal l , dur ing the c o n t i n u a n c e o f t h e t e n a n c y , be pe i rnfneaf r

t o d e n y t h a t t h e l a n d l o r d o f s u c h t e n a n t h a d , a t t h e b e g i n n i n g o r t n e „ J ° ° licenses ot

t e n a n c y , a title to s u c h i m m o v a b l e p r o p e r t y ; a n d n o p e r s o n w h o Cpa.m^ m

u p o n a n y i m m o v a b l e p r o p e r t y b y t h e l i c e n c e o f t h e P e r s o j j j s j i g s s i o n

p o s s e s s i o n t h e r e o f s h a l l dur ing the c o n t i n u a n c e o f s u c h l icence b e p e r m i t t e d to d e n y t h a t s u c h p e r s o n b a d a title to s u c h p o s s e s s i o n a t t h e time w h e n such licence was given.

1 2 5 . N o a c c e p t o r o f a bill o f e x c h a n g e s h a l l b e p e r m i t t e d to c t e t o g p e i o f

t h a t t h e d r a w e r h a d a u t h o r i t y to d r a w s u c h bill o r to e n d o r s e it: a ( = c e P t o r o f

bill of P r o v i d e d t h a t t h e a c c e p t o r o f a bill o f e x c h a n g e m a y d e n y t h a t tfjiftange

bill w a s real ly d r a w n or e n d o r s e d b y the p e r s o n b y w h o m it P u r p o r t s to h a v e b e e n d r a w n o r e n d o r s e d .

1 2 6 . N o b a i l e e o r l i c e n s e e s h a l l b e p e r m i t t e d to d e n y t h a t his b a ^ f t p P 6 1 ^ or l i c e n s o r h a d , a t the t ime w h e n the b a i l m e n t o r l i cence C o m m e n d e d ? 1 6 6 o r

lie C11 s c au tho r i t y to m a k e s u c h b a i l m e n t o r g r a n t s u c h l i c e n c e :

P r o v i d e d t h a t if a b a i l e e de l ive r s t h e g o o d s b a i l e d to a p e r s o n o t h e r t h a n the bai lor , h e m a y p r o v e t h a t s u c h p e r s o n H A D A RIGHT T O T H E M A S

A G A I N S T T H E B A I L O R .


C H A P T E R V - W T T N E S S E S

P A R T I

COMPETENCY, COMPELLABILITY AND PRIVILEGE OF WITNESSES

who may 127.-(I) A U p e r s o n s shall be c o m p e t e n t to testify unless the court testify considers that they are prevented from understanding the questions put

to them, or from giving rational answers to those quest ions , by r ea son of t ende r yea r s , extreme old a g e , d i s ea se (whether of body or mind) or any other similar cause .

(2) Where in any criminal cause or matter any child of tender years called as a witness does not, in the opinion ofthe court, unders tand the n a t u r e o f a n o a t h , h i s e v i d e n c e m a y b e r e c e i v e d , t h o u g h n o t given u p o n oa th or affirmation, if in the opinion o f t h e court, to be recorded in the proceedings, he is p o s s e s s e d of sufficient intelligence to justify the r e c e p t i o n of his e v i d e n c e , a n d u n d e r s t a n d s the duty o f speaking the truth:

Provided that where evidence received by virtue ofthis subsec t ion is given on beha l f o f the prosecut ion , the a c c u s e d shall no t be liable to be convicted un less such ev idence is cor robora ted by s o m e o ther material evidence in support thereof implicating the accused .

(3) A person of unsound mind is not incompetent to testify, unless he is prevented by his condition from unders tanding the questions put to him and giving rational answers to them.

Dumb 128.-(I) A witness who is unable to s p e a k m a y give his ev idence witnesses m a n y o t h e r m a n n e r in w h i c h h e c a n m a k e it intel l igible, a s by

writing or by s igns ; bu t s u c h writing m u s t be written, a n d the s igns made , in open court.

(2) Evidence so given shall be deemed to be oral evidence.

Privilege of 129. No judge or magistrate shall, excep t upon the specia l order of s o m e court to which he is subord ina te , be compel led to a n s w e r a n y quest ions as to his own conduc t in court as such judge or magis t ra te , or as to anything which came to his knowledge in court as such judge or m a g i s t r a t e , b u t he m a y be e x a m i n e d a s to o t h e r m a t t e r s which occurred in his p r e sence whilst he was so acting.

Competency 130.-(I) Where a p e r s o n c h a r g e d with an offence is the h u s b a n d and or the wife of a n o t h e r p e r s o n , s u c h las t n a m e d p e r s o n shal l be a compellability competent but not a compellable witness on behalf ofthe prosecution: of accused a n d Provided that the wife or h u s b a n d shal l be a c o m p e t e n t a n d com-husband or pellable witness for the p rosecu t ion in the following c a s e s only:. Wife

(a) in any case w h e r e the person charged is charged w i t h an offence C a P - 1 6 u n d e r C h a p t e r XV of the P e n a l Code or aga ins t sect ion 164 of

the Penal Code;

NO. 6 EVIDENCE ACT 1967 1967 5 5

(b) in a n y c a s e w h e r e the p e r s o n c h a r g e d is c h a r g e d m r e s p e c t o f a n a c t o r o m i s s i o n a f fec t ing t h e p e r s o n o r p r o p e r t y o f t h e wife o r h u s b a n d o f s u c h p e r s o n o r t h e c h i l d r e n o r e i t h e r o f t h e m .

(2 ) W h e r e a p e r s o n w h o m t h e c o u r t h a s r e a s o n to b e l i e v e is t h e h u s b a n d o r wife o f a p e r s o n c h a r g e d wi th a n o f f e n c e is c a l l e d a s a w i tne s s for the p r o s e c u t i o n , the cou r t shal l , e x c e p t in the c a s e s specif ied in t h e p r o v i s o to s u b s e c t i o n (1 ) , e n s u r e t h a t s u c h p e r s o n is b e f o r e g iv ing e v i d e n c e m a d e a w a r e o f t h e p r o v i s i o n s o f s u b s e c t i o n (1) a n d the e v i d e n c e of s u c h p e r s o n sha l l n o t be admis s ib l e u n l e s s the cou r t h a s r e c o r d e d in the p r o c e e d i n g s t ha t this s u b s e c t i o n h a s b e e n compl ied with.

(3) E v e r y p e r s o n c h a r g e d with a n offence a n d the wife o r h u s b a n d , a s t h e c a s e m a y b e , o f t h e p e r s o n s o c h a r g e d , s h a l l b e a c o m p e t e n t w i t n e s s for t h e d e f e n c e a t e v e r y s t a g e o f t h e p r o c e e d i n g s w h e r e t h e p e r s o n s o c h a r g e d is c h a r g e d so le ly o r jointly with a n y o t h e r p e r s o n :

P r o v i d e d t h a t t h e wife o r h u s b a n d o f t h e p e r s o n s o c h a r g e d s h a l l n o t b e ca l l ed a s a w i t n e s s e x c e p t u p o n the app l i c a t i on o f t h e p e r s o n s o cha rged .

(4) N o t h i n g u n d e r this s e c t i o n s h a l l m a k e a h u s b a n d c o m p e l l a b l e t o d i s c l o s e a c o m m u n i c a t i o n m a d e t o h i m b y h i s wife d u r i n g t h e m a r r i a g e o r a wife c o m p e l l a b l e to d i s c lo se a n y c o m m u n i c a t i o n m a d e to h e r by h e r h u s b a n d during the m a r r i a g e .

(5) The failure o f a n y p e r s o n c h a r g e d with a n of fence , or o f t h e wife or h u s b a n d o f a n y s u c h p e r s o n , to give e v i d e n c e sha l l n o t b e the s u b j e c t o f a n y c o m m e n t by the p rosecu t ion .

1 3 1 . In all civil p r o c e e d i n g s t h e p a r t i e s to t h e sui t , a n d t h e h u s ^ g ^ n c y

a n d wife o f a n y p a r t y to t h e sui t , s h a l l b e c o m p e t e n t a n d compel la fofe wi tnesses . and their

h u s b a n d s and wives in civil p roceed ings

132. W h e n e v e r it is s t a t e d on o a t h ( w h e t h e r by affidavit or otherwisep) l v l iege b y a Min i s t e r , o r b y t h e S e c r e t a r y - G e n e r a l o f t h e C o m m o n S e r v i g ^ g n g to O r g a n i z a t i o n , t h a t h e h a s e x a m i n e d t h e c o n t e n t s o f a n y docurrffffiftj f o rming p a r t o f a n y u n p u b l i s h e d official r e c o r d s o r c o m m u n i c a t i o n s r e c e i v e d b y a publ ic officer in the c o u r s e o f his du ty , the p r o d u c t i o n o f w h i c h d o c u m e n t h a s b e e n ca l l ed for in a n y p r o c e e d i n g s , a n d t h a t h e is o f t h e op in ion t h a t s u c h p r o d u c t i o n w o u l d b e p re jud ic i a l to t h e publ ic i n t e r e s t , e i t h e r b y r e a s o n o f t h e c o n t e n t s t h e r e o f o r o f t h e fac t t h a t it b e l o n g s to a c l a s s w h i c h , o n g r o u n d s o f publ ic pol icy, s h o u l d b e withh e l d from s u c h p r o d u c t i o n , t h e d o c u m e n t s h a l l n o t b e a d m i s s i b l e .

133.—(1) N o j u d g e , m a g i s t r a t e o r pol ice officer s h a l l b e c o m p e l l e j l f o r m a t i o n

t o s a y w h e n c e h e g o t a n y i n f o r m a t i o n a s t o t h e c o m m i s s i o n o f a n y of fence , a n d n o r e v e n u e officer sha l l be c o m p e l l e d to s a y w h e n c e he^'e'B'P1 0 1 1

q i oiierices a n y information a s to the c o m m i s s i o n o f a n y offence a g a i n s t the publ ic reve nue .

(2) F o r the p u r p o s e o f s u b s e c t i o n (1), " r e v e n u e officer" m e a n s a n y officer e m p l o y e d in o r a b o u t t h e b u s i n e s s o f a n y b r a n c h o f t h e pub l i c revenue and public revenue includes income tax, cus toms and e x c i s e .


P r o f e s s i o n a l communication

134,(1) No a d v o c a t e shal l a t a n y time be permit ted, un l e s s with his client's exp re s s consen t , to disclose any communicat ion m a d e to him in the c o u r s e a n d for the p u r p o s e of his e m p l o y m e n t a s s u c h a d v o c a t e by or o n b e h a l f o f his cl ient , o r to s t a t e the c o n t e n t s or condition o f a n y d o c u m e n t with which he h a s b e c o m e acqua in ted In the course and for the purpose of his professional employment , or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure-

(a) any communication made in furtherance of any illegal purpose ; (b) any fact observed by any advocate in the course of his employ

m e n t a s s u c h , s h o w i n g t h a t a n y c r i m e o r f r aud h a s , b e e n committed since the commencement of his employment, whether the attention of such advoca te was or was not directed to such fact by or on behalf of his client.

(2) The obligation stated in this section continues after the employment has cea sed .

(3) For the purposes ofthis section and of sections 135, 136 and 137, the words "advoca te" and "professional legal adviser" m e a n a pe r son authorized by law or reasonably believed by the client to be authorized by law to pract ise law in any country, the law of which recognizes a privilege aga ins t disclosure of confidential communicat ion b e t w e e n client and professional legal adviser or advocate.

privilege of 135. The provisions of sect ion 134 shall apply to interpreters , and interpreters, t h e c l e r k s o r s e r v a n t s o f a d v o c a t e s . and advocates clerks

p r i v i l e g e n o t 136.-(1) If a ny party to a suit gives ev idence there in a t his own w a i v e d b y instance or otherwise, he shall not be deemed to have consented thereby I v i d e n o e " " 8 to such disclosure as is mentioned in section 134.

(2) If any party to a suit or p roceed ing calls any such advoca te as a witness he shall be d e e m e d to have consented to such disclosure only if he questions such advocate on matters which, but for such question, he would not be at liberty, to disclose.

communica 137. No one shall be compelled to disclose to the court any confiden

tial c o m m u n i c a t i o n which h a s t a k e n p l a c e b e t w e e n h im a n d his tions with A

l e g a i a d v i s e r s advoca te or profess ional legal adviser , un less he offers himself as a w i t n e s s , in which c a s e he m a y b e c o m p e l l e d to d i sc lose a n y s u c h communicat ions as may a p p e a r to the court n e c e s s a r y to be known in order to explain any evidence which he h a s given, but no others .

Product ion of t i t le-deeds of wi tness no t a party

138 . N o w i t n e s s w h o is n o t a par ty to a suit shal l b e c o m p e l l e d to produce his title-deeds to any property or any documen t unde r which he holds any property as pledge or mor tgagee , unless he has ag reed in writing with the person seeking the production of such deeds or some person through whom he claims to produce them.


139. No witness who is not a party to the suit shall be compeffl&duction of to p r o d u c e a d o c u m e n t t he p r o d u c t i o n o f w h i c h m i g h t tendct iminat ion incr iminate him, u n l e s s he h a s a g r e e d in writing with The percfoedments seeking the production of such document or some person through whom he claims to produce it.

Production 140. No one shall be compelled to produce documents in his posiseument

sion, which any o ther p e r s o n would be entitled to refuse to procfrxCfe if they were in his p o s s e s s i o n , un less such o ther p e r s o n conseht§ t io ' ,, • . ,• person t h e i r p r o d u c t i o n . , 1 having

possession could refuse

141. A witness s h a l l n o t b e excused from answering any q u e s t i o n J a s d u c e

to any mat ter relevant to the matter in issue in any suit or in any Crvrr e s s n o t

excused from or cr iminal p r o c e e d i n g , u p o n the g r o u n d t h a t the a n s w e r to s u cbi • question will incriminate, or may tena directly or indirectly to, mcrirru- „ r o u n ^ na te , such witness , or that it will expose , or tend directly or indi rec j (g{ a n s w e r

to e x p o s e , such witness to a penal ty or forfeiture of any kind, or tfejat it may establish or tend to establish that he owes a debt or is othecwffirSnate subject to a civil suit:

Provided that no such answer , which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any s u b s e q u e n t criminal p roceed ing , excep t a prosecut ion for giving false evidence by such answer.

142. An accomplice shall be a competen t witness , agains t an acetes<@id>lice person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony o fan accomplice.

143. Subject to the provisions of any other written law no particvAmberof n u m b e r of wi tnesses shall in any ca se be required for the proof of\aaaysses f ac t .

P A R T m EXAMINATION OF WITNESSES

144. The o rder m which wi tnes se s are p r o d u c e d and exammed (s rrVa'Ii f

b e r e g u l a t e d by the l aw a n d p rac t i ce for the t ime b e i n g relatirigX )TO : t l o n

civil and criminal procedure respectively, and in the absence ofany l^cji^tion law, by the discretion ofthe court. ofwitnesses

145.-(1) W h e n e i ther par ty p r o p o s e s to give e v i d e n c e o f a n y faafotirtto the cour t m a y a s k the party p ropos ing to give the ev idence in v4h<ad;e as to manner the alleged fact, if proved would be relevant. admissibility

of evidence (2) The court shall admit the evidence of any fact if it thinks that

the fact, if proved, would be relevant, and not otherwise. (3) If the fact p r o p o s e d to be proved is one of which evidence is

admissible only upon proof of s o m e o ther fact, such las t -ment ioned f a c t m u s t b e proved before evidence is given ofthe fact first mentioned unless the party under takes to give proof of such fact and the court is

satisfied with such undertaking.


(4) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the judge may, in his discretion, either permit evidence of the first fact to be given before the s econd fact is proved or require evidence to be given of the s e c o n d fact before evidence is given ofthe first fact.

E x a m i n a t i o n 146. (1) The examination of a witness by the party who calls him o r w i t n e s s e s * n * n * * • • • • i • r« shallbe called his examination-in-chief.

(2) The examination of a witness by the adverse party shal lbe called his cross-examination.

(3) The examination of a witness, subsequen t to the cross-examination, by the party who called him, shal lbe called his re-examination.

Order and direction of examina t ions

147,(1) W i t n e s s e s s h a l l b e first examined-in-chief , t h e n (if the adverse party so desires) cross-examined, then (ifthe party calling them so desires) re-examined.

(2) The examination-in-chief m u s t relate to relevant facts, but the c r o s s - e x a m i n a t i o n n e e d n o t be conf ined to the facts to which the witness testified on his examination-in-chief

(3) The re-examination shal lbe directed to the explanation of matters referred to in cross-examinat ion; and, if n e w mat ter is, by permission o f t h e court , i n t roduced in r e - e x a m i n a t i o n , the a d v e r s e par ty m a y further cross-examine upon that matter.

(4) The court may in all c a s e s permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so , the parties have the right of further cross-examinat ion and re-examination respectively.

P A R T IV

Q U E S T I O N I N G O F W I T N E S S E S

C r o s s -examina t ion of p e r s o n called to p roduce a d o c u m e n t W i t n e s s e s to c h a r a c t e r

M e a n i n g o f l e a d i n g

q u e s t i o n

148. A pe rson s u m m o n e d to produce a documen t does not b e c o m e a witness by the m e r e fact tha t he p r o d u c e s it, a n d c a n n o t be c r o s s -

examined unless and until he is called as a witness.

149. Witnesses to character may be cross-examined and re-examined.

150. Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

Leading ques t ions in examina t ion in-chief and r e -examina tion

151. (1) Leading quest ions mus t not, if objected to by the adverse -par ty , be a s k e d in an examination-in-chief, or in a re-examinat ion, except with the permission ofthe court

(2) The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion b e e n already sufficiently proved.

NO. 6 Evidence Act 1967 1967 39

152. Leading questions may be asked in cross-examination. Leading questions in-cross-examination

153. Any witness m a y b e asked , whilst under examination, whem v e d f n c e a s

any contract or grant or other disposition of property, as to which^rFe^J^ is giving ev idence , was not con ta ined in a documen t , and if he says" 8

that it w a s , or if he is abou t to make any s t a t emen t as to the contents of a n y d o c u m e n t , wh ich , in the opinion o f t h e cour t , o u g h t to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. 154. A wi tnes s m a y b e c r o s s - e x a m i n e d a s to p rev ious staterrtesBsts made by him in writing or reduced into writing, and relevant to matte^Smination in question, without such writing being shown to him or being proved 1, 0

but if it is intended to contradict him by the writing, his attention m u § T ; v l 0 U S

before the writing can be proved, be called to those parts of it WBKJSJF^ are to be u sed forthe purpose of contradicting him. wrung

jments in

155. When a witness is c ros s -examined , he may , in addition toQteetions questions herein before referred to, be asked any questions which tandrin

cross-(a) tO test his veracity; examination (b) to discover who he is and what is his position in life; or (c) to shake his credit, by injuring his character, although the answer

to such questions might tend directly or indirectly to incriminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

156. If a n y ques t i on a s k e d u n d e r sec t ion 155 re la tes to a m<aiftettons relevant to the suit or proceeding, the provisions of section 141 slteUilin apply thereto. cross-

examination

157. A p e r s o n charged with an offence who is called as a witne^^s r- . r- i i j • • examination f o r t h e d e f e n c e m a y b e a s k e d a n y ques t i on in c r o s s - e x a m m a u b n ^ ^ notwithstanding that the answer may tend to incriminate him as to me s e

~ , ? J person offence charged.

158,(1) If any question asked relates to a matter not relevant to tfieurtto suit or proceeding, except in so far as it affects the credit ofthe witne it (8 i d e w h e n

by injuring his charac ter , the court shall decide whe the r or not f ^ ^ b ° n ^ s k e d

witness s h a l l b e compel led to a n s w e r it, and may , if it does n o t ^ ^ ^ compel him, warn the witness that he is not obliged to answer i t . w i t n e s s

(2) In exercising its discretion under subsection (1), the court s h a P P m P e l l e d t 0

have regard to the following considerations- answer

(a) such ques t ions are p rope r if they are of such a nature that the truth ofthe imputation conveyed by them would seriously affect the opinion o f the court a s to the credibility o f the wi tness on the matter to which he testifies;


Q u e s t i o n s n o t t o b e a s k e d w i t h o u t r e a s o n a b l e g r o u n d s

(b) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character , that the truth ofthe imputation would not affect, or would affect in a slight degree , the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(c) s u c h ques t ions are improper if there is a g r e a t disproport ion b e t w e e n the i m p o r t a n c e o f t h e imputa t ion m a d e a g a i n s t the witness's character and the importance of his evidence.

(3) The court may, if it s e e s fit, draw from the witness 's refusal to answer , the inference that the answer , if given, would be unfavorable

159. No such ques t ion as is referred to in sect ion 158 ough t to be asked , unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.

160. The court may forbid any question or inquiries which it regards I n d e c e n t a n d

q u e " s t i o n s U S a s i ndecen t or s c a n d a l o u s , a l though such ques t ions or inquiries m a y

have some bearing on the questions before the court, unless they relate to facts in i s s u e , or to m a t t e r s n e c e s s a r y to be k n o w n in o r d e r to determine whether or not the facts in issue existed.

161 . The court shal l forbid any ques t ion which a p p e a r s to it to be Q u e s t i o n s

i n s u i f o r 1 1 0 intended to insult or annoy, or which, though proper in itself, appears a n n o y to the court needlessly offensive in form.

E x c l u s i o n o f e v i d e n c e t o c o n t r a d i c t a n s w e r s t o q u e s t i o n s te s t i n g v e r a c i t y

162. When a witness has b e e n asked and has answered any question which is re levant to the inquiry only in so far as it t ends to s h a k e his credit by injuring his character, no evidence shall be given to contradict him, but, if he a n s w e r s falsely, he m a y af terwards be c h a r g e d with giving false evidence:

P r o v i d e d that-

D i s e r e t i o n t o a l l o w c r o s s e x a m i n a t i o n o f o w n w i t n e s s

(a) if a witness is a sked whether he has b e e n previously convicted ofany crime and denies it, evidence may be given of his previous convictions;

(b) if a w i t n e s s is a s k e d a n y q u e s t i o n t e n d i n g to i m p e a c h his impartiali ty a n d a n s w e r s it by d e n y i n g the facts s u g g e s t e d , evidence may be given ofthe facts.

163. The court may , in its discretion, permit the p e r s o n who calls "a w i tnes s to p u t a n y ques t i on to him which might b e p u t in c r o s s -examination by the adverse party.

I m p e a c h i n g t h e c r e d i t o f a w i t n e s s

164.-(I) The credit of a witness m a y b e impeached in the following ways by the adverse party, or, with the consent ofthe court, by the party w h o cal ls h i m -

(a) by the ev idence o f p e r s o n s who testify tha t they , from their knowledge ofthe witness, believe him to be unworthy of credit;

No. 6 Evidence Act 1967

(b) by proof that the witness has received or received the offer of a corrupt inducement to give his evidence;

(c) by proof of former s ta tements inconsistent with any part of his evidence which is liable to be contradicted;

(d) w h e n a m a n is p r o s e c u t e d for r a p e , or a n a t t e m p t to commit r a p e , it m a y b e s h o w n tha t the p rosecu t r ix w a s of genera l ly immoral character.

(2) A person Who, called as a witness pursuant to paragraph (a) of subsection (1), declares another witness to be unworthy of credit may not, upon his examination-in-chief, give r easons for his belief, but he may be asked his reasons in cross-examination and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

165 . w h e n a w i t n e s s w h o m it is i n t e n d e d to c o r r o b o r a t e gi'^KjJence ev idence of any re levant fact, he m a y be ques t i oned as to any fJifeerto

c i r c u m s t a n c e s which he o b s e r v e d a t or n e a r to the time or pla<g§h-gi|iorate which such relevant fact occurred, if the court is of opinion that sy^Jfe n c e 0 f c i r c u m s t a n c e s , if p roved , would corroborate his tes t imony as toriheant fact relevant fact about which he testifies. admissible

166. In o r d e r t o corroborate the test imony of a wi tness , any forrrf6'fmer

s t a t emen t , written or oral, m a d e by such witness relating to the s t i i i i te l e n t s

fact m a d e either at or abou t the s a m e time when the fact took plafife^Slf88

before any authority legally compe ten t to investigate the fact, may"t£g b e

proved. proved to corroborate later testimony as to same fact

167. W h e n e v e r a n y s t a t e m e n t , r e l e v a n t u n d e r sec t ion 34 or 3\Satisiatter p roved , all ma t t e r s m a y b e p roved e i ther in o r d e r t o , cont rad ic t 8¥5 te e

corroborate it, or in order to impeach or confirm the credit Ofthe pePS<Oft d in by w h o m it w a s m a d e , which might h a v e b e e n p r o v e d if t h a t pe?wu>fiption h a d b e e n called as a wi tness a n a h a d den i ed u p o n cross-examijâfjiêd the truth ofthe matter suggested ' statement

relevant P A R T V under

section R E F R E S H I N G M E M O R Y A N D P R O D U C T I O N O F D O C U M E N T S 34 or 35

168~(1) A w i tness may, while under examination, refresh his memofêfreshing by referring to any writing m a d e by himself at the time of the transmonory tion concerning which he is quest ioned or so soon afterwards that the court cons iders it likely that the t ransact ion was at that time fresh in his memory.

(2) A witness may. while under examination, refresh his memory by referring to a n y writing m a d e by a n y o the r p e r s o n a n d r e a d by the witness within the time referred to in subsect ion (1), if when he read it he k n e w it to b e cor rec t .


w h e n wi tness 169. Whenever a witness may refresh his memory by reference to any o T d o c u m e n t y writing, he may, if the court is satisfied that there is sufficient r eason to refresh for the non-production ofthe original, and with the permission of the m e m o r y court, refer to a copy of such writing.

170. An expert may refresh his memory by reference to professional treatises.

171 . A witness m a y also testify to facts men t ioned in any s u c h docu-tent as is mentioned in section 16i recollection o f the facts t hemse lv correctly recorded in the document.

ment as is mentioned in section 168 or 169, although he has no specific recollection o f the facts t h e m s e l v e s , if he is sure tha t the facts were

172. Any writing referred to u n d e r the provisions of sec t ion 168 or 169 mus t be produced and shown to the adverse party if he requires it and such party may, if he p l e a s e s , cross-examine the witness thereupon.

E x p e r t m a y r e f r e s h h i s m e m o r y

Tes t imony to facts s t a t ed in d o c u m e n t a l though facts not t h e m s e l v e s specifically re c a lie d

Right of a d v e r s e party u s e d to refresh m e m o r y

P r o d u c t r o n o f 1735(I) A witness summoned to produce a document shall, if it is in his possess ion or power, bring it to court, notwithstanding any objection which there m a y be to its product ion or to its admissibility, bu t the validity o f any such objection shall be decided on by the court.

(2) (a) The court may, if it sees fit, inspect the document, unless it is a document to which section 132 is applied, or may take other evidence to enable it to determine on its admissibility.

(b) If for such a purpose it is necessa ry to cause any document to be translated, the court may, if it thinks fit, direct the t ranslator to keep the contents secret, unless the document is to be given in evidence; and if the interpreter disobeys such direction, he shall be held to have committed an offence under section 96 ofthe P e n a l Code. C a p . 16

Giving as ev idence , of d o c u m e n t called for and

p r o d u c e d on notice U s i n g a s e v i d e n c e o f d o c u m e n t p r o d u c t i o n o f w h i c h w a s r e f u s e d

P o w e r of court to pu t ques t ions or Order product ion

174. When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected

by the p a r t y cal l ing for its p r o d u c t i o n , h e is b o u n d to g ive it a s evidence if the party producing it requires him to do so.

1.75. When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consen t of the other party or the order of the court.

1 76 . (I) The court m a y , in o rde r to d i scover or to obtain p r o p e r proof of relevant facts, a sk any que stion he p l ea se s , in any form, at any t i m e , of a n y w i t n e s s , or of the pa r t i e s a b o u t a n y fact re l e v a n t or irrelevant; and may order the production o fany document or thing; and n e i t h e r the pa r t i e s n o r the i r a g e n t s s h a l l be ent i t led to m a k e a n y objection to any such quest ion or order, nor, without the leave o f the court, to cross-examine any witness upon any answer given in reply to any such question:

N o . 6 Evidence Act 1967 1967 43

Provided that j u d g m e n t m u s t be b a s e d upon facts dec la red by this Act, to be relevant, and duly proved.

(2) Subsection (1) shall not authorize a court-

(a) to compel any witness to answer any question, or to produce any d o c u m e n t which s u c h wi tness would b e entit led to refuse to a n s w e r or produce unde r Par t II of this Chapter , if the quest ion w e r e a s k e d or the d o c u m e n t w e r e ca l led for by the a d v e r s e party;

(b) to a sk any quest ion which it would be improper for any other person to ask under section 158 or 159; or

(c) to d i spense with primary evidence of any document , except in the cases excepted by this Act.

PART VI QUESTIONS By A S S E S S O R S

177. In ca se s tried with a s s e s s o r s , the a s s e s s o r s may put any qu^g^ i^g to the witness, through or by leave ofthe judge, which the judge hin^§eeIfsors to might put and which he considers proper. put questions

CHAPTER V I - IMPROPER ADMISSION AND REJECTION OF EVIDENCE

178. The improper admission or rejection of evidence shall not be ground of itself for a new trial, or reversal o f any decision in any casfe0,116™8 t n a

if it shall a p p e a r to the court before which such objection is raised tJ} n yj S s i o n

i ndependen t ly o f t h e ev idence objec ted to a n d admi t ted , there wftsjbction sufficient evidence to justify the decision, or that if the rejected evidentfevidence had been received, it ought not to have varied the decision.

CHAPTER Vn-MISCELLANEOUS

179. Save as otherwise expressly provided in this Act, nothing in this saviiigyfeifor Act shall be deemed to derogate from the provisions of any other written omeyfewiaws law which relate to matters of evidence.

180.-(1) The Criminal P r o c e d u r e C o d e is a m e n d e d as follows Amendment

(a) in section 145, by deleting the wo rds "sections 123 or 124 ofm&j^s

P

Ind ian E v i d e n c e Act, 1 8 7 2 , app l i ed to the Terri tory" in s u b section (2) and substituting therefor the words "section 132 ofthe Evidence Act, 1967";

(b) in section 152, by deleting subsection (3);

(c) by repealing sections 155 and 161; and

44 N o . 6 Evidence Act 1967 1967

Cap. 6

Cap. I

Cap. 453

(d) in section 159, by, deleting the words "section 33 of the Indian Evidence Act, 1872, as applied to the Territory" in subsection (2) and substituting there forthe words "section 132 ofthe Evidence Act, 1967".

(2) The Evidence (Bankers Books) Ordinance is hereby repealed.

(3) Sections 7 and 11 ofthe Evidence Act, 1851, ofthe United Kingdom shall c e a s e to apply to Tanganyika as part of the law thereof and section 10 of the Interpretation and Gene ra l C lauses Ordinance shall apply as if that law was an Ordinance repealed by this Act.

(4) P a r t I o f t he S c h e d u l e to the Jurisdiction a n d Application of Laws Ord inance , 1961 is h e r e b y a m e n d e d by deleting the reference therein to the Evidence Act, 1851.

(5) The Indian Evidence Act, 1872 shall c e a s e to apply to Tanga nyika as part ofthe law thereof and section 10 ofthe Interpretation and General Clauses Ordinance shall apply as if that Act were an Ordinance repealed by this Act.

(6) The Indian Acts (Applicat ion) O r d i n a n c e is a m e n d e d a s follows: -

(a) by repealing section 8, and

(b) by delet ing the r e fe rence to the Indian E v i d e n c e Act in the Schedule thereto.

Passed in the National Assembly on-the seventeenth day of April, 1967.

Clerk &f the National Assembly s e k w a

Printed by the Government Printer, Dar es Sa laam.

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