Vous êtes sur la page 1sur 16


The general rule to prove is that all relevant facts must be

proved. This requires statements of witnesses, admissions and
confessions, productions of documents so that if the plaintiff or
the prosecutor fails to prove an essential fact, then his opponent
succeeds on.
In criminal case, the opponent will make a submission of no
case to answer and he is acquitted but in civil matters, it will be
a submission of there is no case to answer.
There are two exceptions to the above general rule of proof.
There is no need to give evidence to prove existence or
non-existence of relevant facts or facts in issue which
judicial notice is taken- section 55
Facts which are formally acquitted- section 57
What is judicial notice?
Judicial notice is a matter which is so notorious that it is taken
generally as an existing fact.
Lord Summer in the case of common wealth shipping
representative v P. and O. Branch services [1923] AC 191,
212 defined judicial notice as;

facts which a judge or a magistrate may be called upon

either from his general knowledge of them, or from
inquiries to be made by himself for his own information
from sources to which it is proper for him to refer
When court takes judicial notice of a fact, it will find that, that
fact exists although the existence of a fact has not yet been
established by bringing testimony. For example, if the date of
Ugandas independence is in issue or is a relevant fact, you
dont need witnesses to testify that Uganda got independence
on 9th October 1962, court takes judicial notice of that fact.
There are two classes in which court will take judicial notice of
Facts which a judge will be called upon to receive and
act upon from his general knowledge of a fact or from
inquires he makes for himself for his own information
and from trusted sources. The party who asks court to
take judicial notice of a fact, has the burden to prove
that the matter is so notorious and should therefore not
be a subject of dispute among reasonable men or that the
matter is capable of immediate accurate demonstration
by resort to other sources of undisputed evidence.
According to section 55 of the evidence Act, it is provided that
no fact of which court takes judicial notice needs to be proved
and the other section 56 is an example to which court takes

judicial notice for example laws of Uganda, proceedings of

parliament and other law making bodies, sells of government
of Uganda, names of people occupying public offices, national
flags of sovereign states, geographical divisions of the world,
divisions of time, public festivals, holidays notified in a
gazette, officers of the courts of law, rules of the land and sea,
all the above, court takes judicial notice

In Nye v Niblett [1965] EA 7 judicial notice was taken of the

fact that cats are kept for domestic purposes.
In the case of Gupta v continental builders LTD (1978) KLR
83, it was held that, one who seeks judicial notice has also to
prove that the matter is capable of immediate and accurate
demonstration by resort to readily accessible sources of
indisputable accuracy.

Under section 56(3), the person who wishes to rely on judicial

notice has got the burden. In the case of sale v R 1950 20
EACA 21 it was held that court must take judicial notice of the
laws enacted in Kenya as long as a notice was published in the
gazette of that order.
In kaluma v R 1955 (2) EACA 364, it was held that when an
indictment alleges that a particular place is where an offence
was committed and no challenge is raised, then court may take
judicial notice that the charge is situate in that place mentioned.
There are matters of common knowledge and these need not be
proved because they are generally known for example if they
are notorious for example practises in a society that evolves
over time.
The real test for judicial notice is the notoriety rule. Once a fact
in issue is so notorious, then, the court will most probably take
judicial notice of it.

The term simply refers to independent testimony which tends
to support or confirm other evidence already adduced at the
trial as true and reliable.
Progretic evidence is evidence which tends to
e.g. in a charge of theft, other evidence is given that the theft
was seen breaking into a house to steal and was caught with
stolen property, in murder, the weapon used is such other
There are certain types of cases in which court will not convict
an accused person or will not return judgment in ones favour
unless evidence being adduced is corroborated.
Therefore it is the prosecution that has the burden to prove the
independent testimonies. In the case of R v Baskerville 1961 2
KB 658, the judge defined corroborating evidence as such
evidence corroboration must be independent testimony which
affects the accused by connecting or tending to connect him to
the crime. It is evidence which implicates him and which
confirms whit some material particular not only that the crime
has been committed but also that it is the prisoner who
committed the crime. It is supportive evidence.
In that case, Baskerville was charged with gross indecency
with two boys. The only evidence of his charge was evidence

of the two boys but they were accomplice in the crime and it is
a judicial requirement the judicial Shall be corroborated before
it can be used to convict the accused. The accused appealed on
ground that the evidence of the two boys had not been
In R v kilbourne, it was held that corroborative evidence is
evidence which tends to confirm other evidence produced at
the trial.
It is additional evidence which renders it probable that the
story of the witness is true and that it is reasonably safe to act
on it.
It is independent and affects the accused by connecting or
tending to connect him with the crime and confirming in some
material particular not only that the crime has been committed
but also that it is the accused who committed it.
Corroborative evidence need not corroborate the whole
testimony produced at the trial. It is enough if it corroborates a
material particular of such testimony e.g. in a rape case, a
medical report by a doctor stating that it examined anyone of
the parties can be taken as corroborative evidence. Such other
examples may be torn garments, scratched body fore-instance.
Therefore the main elements of corroborating evidence are;

It is independent testimony connecting or tending to

connect the accused with the crime. It is supposed to
check the other testimony adduced at the trial to test its
It need not corroborate the whole of the evidence
produced at the trial. It is enough if it corroborates a
material particular.
If two witnesses both require corroboration, they cannot
do so for example two children, two thieves, because
each will incriminate or accuse the other.
In Totu v R 1934, it was held that two, whose evidence
requires the same, cannot corroborate each other.
The rational for corroboration is to test the real liability of the
accused and to support it So that the trial judge can feel safe to
convict an accused. Otherwise he may acquit if there is no
Secondly, there are certain cases where there are no
independent witnesses especially on sexual offences. There
will not be a person to testify whether or not there was consent.
In such a case, then court is faced with a challenge of returning
a verdict basing on the oath of the complainant, testifying that
she was raped but also the oath of the accused that the woman
consented. That challenge necessitates corroboration.

Situations under which corroboration maybe required

Section 133 of the Evidence Act states that;
Subject to any written law enforced, there is no particular
number of witnesses required to prove any fact, even one
witness is enough. The forgoing rule makes provision for the
requirement of corroboration.
There are two main categories of evidence which require
The first consists of situations where corroboration is
required as a matter of law i.e. where there is express
statutory provisions that such evidence shall be
corroborated otherwise the court shall not rely on it.
It consists of situations where corroboration is required
as a matter of judicial practice i.e. the courts in their
usual practise have found it necessary that such
evidence must be corroborated.
Situations where corroboration is required by statute
Treason contrary to section 23 of the penal code Act, court
cannot convict on one witness.
Sedition contrary to section 40
Perjury contrary to section 94

Driving recklessly contrary to Roads and Safety Act

Applications for affiliation under the childrens Act although
this can be done away with, if parties opt for a DNA
The unsolved evidence of a child must be corroborated.

Corroboration as a matter of judicial practice

The court in deciding case, found it prudent or wise to rely on
certain evidence and have made it a requirement for
corroboration e.g. accomplice evidence
In Davis v DPP 1954 AC 378, accomplice was defined as;
Participes criminis i.e. participant in the crime, aids
and abates. A receiver of stolen property at a trial is an
Parties to other crimes alleged to have been done by the
accused. When evidence of such crimes is got on the
ground that it has a tendency to prove more than a mere
criminal propensity that is therefore an accomplice is a
participant in the commission of a crime.
According to section 132, an accomplice shall be a competent
witness against an accused and it is not illegal merely because
it proceeds upon the uncorroborated evidence of an

accomplice. Therefore accomplice evidence is acceptable

without corroboration but courts argue that such evidence is
not reliable enough.
The rational is one that the accomplice will minimise this role
in the crime and exaggulates that of the accused. Therefore
accomplice evidence may not be reliable because of the desire
to save this neck.
An accomplice is likely to tell a lie to and shift the guilt to the
accused rather than him-self.
An accomplice as a co participant in the crime is not likely to
value the oath.
An accomplice usually testifies because of the particular
promise made to him that he will be pardoned if he cooperates
with the state or that he will be treated leniently if he gives
away information.
Therefore courts have concluded that an accomplice is a
witness of the most infamous kind, very unreliable and the
veracity of his evidence must be checked through
Another situation is in sexual offences. Even here,
corroboration is required. In Chila v R 1967 EA 172, court
held that in sexual offences, the judge should warn himself of

the dangers of acting on uncorroborated evidence of the

complaint alone but having done so, he may convert in the
abuse of corroboration if he is satisfied that evidence is the
If there is no warning given, the conviction will be set aside on
appeal unless an appellant court is satisfied that there was no
miscarriage of justice.
The desire for corroboration was or rose because courts were
faced with complex psychological situations which may not
necessary be true. The required corroboration comprises
physical signs of resistance by complaint, torn garments,
bruises on the body, distressed condition of complainant,
medical report.
In Eria Ngobi v R, Ngobi raped a girl and infected her with a
viral disease. On medical examination, the hand of Ngobi was
established that both had the same disease. The evidence of
viral disease corroborated the girls story and had the tendency
to connect him to the same. It was held that the accused had
the same viral disease with the girl was corroborative of the
girls complaint that the accused had raped the girl.
Confessions must be corroborated
Twamoi V Uganda 1967 EA 84.

Evidence of a child
If a child gives sworn testimony on oath, it should be
corroborated. In Oloo s/o Gaii V R 1960 EA 172, a judge
relied on evidence of a 12 year old child to convict the child for
murder. He did not warn himself of the need to corroborate the
childs evidence and the accused appealed on this ground. It
was held that the judge erred to rely on the uncorroborated
evidence of the child. The conviction was set aside.
The rationale for this corroboration is that children are
subjective and easy to coach. They do not understand the duty
of saying the truth. Their power for memory is small, as well as
their observation. Therefore they are not reliable.
As a court, if one wants to rely on evidence of a child, a voire
Dire has to be conducted. It is a trial with in a trial of a child to
test whether it understands and appreciates the nature of the

Identification evidence under difficult circumstances for

visual identification
Where the witness purports to have seen the criminal at night
when it was dark and probably not easy to see or a witness
alleges that he saw the witness in a vehicle driving away in a

fast speed that creates possibility for the witness to make a

mistake in identifying the accused.
The courts have therefore found it wise to warn themselves
against convicting against such evidence without corroboration
In Abdalla Briveko (1953) 20 EA, it was held that where
there are conditions identifying correct identification, the court
should warn itself that the evidence whether circumstantial or
direct pointing to the guilt of the accused is necessary before it
can be reasonably concluded that the evidence of a civil
witness identifying the accused is free from the possibility of
error and hence the need for corroboration.

witness fleeing away from the scene of crime shows that

the witness did not see for long.
The judge should ask himself whether the witness knew
the accused before the particular incident so that it was
easy to identify the person e.g. the height, size,
completion of skin.
Therefore, the categorises
corroboration is open.





In Roria v R 1969 EA 583, the trial court held that the judge
should warn himself against using the identification evidence
of a single witness.
In Nabudere v Uganda 1979 HCB, the court laid down three
conditions which a judge should look for before relying on the
evidence of one witness who is allegedly to have identified that
accused when the conditions of visual identification were
The court should ask itself if there was enough light and
what sort of light.
Whether the glace on the suspect by the witness, was a
mere fleeting glance or a glance for long e.g. seeing the





understanding questions put to them during the trial or giving

rational answers to them.

Competence refers to the capacity to give evidence in court.

Not all individuals have the capacity to give evidence e.g.
Children, lunatics, senile people

Section 117 provides that all persons are competent to testify

unless court considers that they are prevented from
understanding questions put to them or giving rational answers
by tender years, senile, disease of body or mind or any other
case of similar kind.

Comparability refers to where a particular witness can be

subject to compulsory process of court to induce him to testify
i.e. can a witness summoned by a court to testify and if he
refuses or disobeys a court order summoning him, can he be
arrested and brought to testify or pushed to contempt of court.
It is that a witness cannot refuses to appear in court to testify or
to answer questions put to him on a particular relevant fact or
fact in issue.
The general principle is that not all competent witnesses are
also compellable because some enjoy privileges and cannot be
compelled to appear in court to testify e.g. presidents,
diplomats, lawyers with regard to their professional occupation
and in regard to their clients, doctors to patients, spouses,

Competency in civil cases- section 121

No civil proceedings parties to the suit and husband and wife
of any party to the suit shall be competent and compellable
Hirji v modessa (1967) EA 724
In criminal cases, an accused is a competent witness but not a
compellable witness. He may be a witness only on his own
matter section 110 MCA

The general rule is that all people are competent to testify
unless they suffer from some disability e.g. if they are young ,
senile, insane,
which state renders them incapable of

Dumb/deaf witnesses
These of themselves do not render incompetence unless the
witness is not capable of understanding questions put to them
or giving rational answers to the questions. So they can write

their testimony or they can testify through an interpretor who

can understand signs. That person can be sworn in as an
interpretor. section 118
In Hamisi s/o salun 1951 EACA 217 the witness was deaf and
dumb, could not speak and hear but she had a sister who could
understand the sound and noises she made. The trial magistrate
allowed the evidence being given by the witness and the sister
took an oath as an interpretor. The accused challenged this
evidence. It was held that such a witness was competent to act
the way she did although in the instant case, the method of
interpretation was prude, she should not have been allowed to

Evidence of spouses
Spouses are competent to testify to each other but are not
compellable. Section 120 EA
Under the law of privilege, confidential information between a
couple during the subsistence of their marriage is privileged
unless the fact in issue concerns domestic violence, incest,
adultery, rape, indecent Assault

The rational is that except for the spouse, it would be very

difficult to get evidence in such circumstances because many
of these events happen in private.

Children of tender years

A child of tender years may not be competent by reason of his
age if he does not understand questions put to him. Section 117
There is no statutory definition of child of tender years but the
locus cluscus is the case of kibagenyi v R 1969 EA 92.
The accused was convicted of murder, evidence against him
was his two sons aged 12 to 13, and 9 to 10 years. On appeal,
he challenged there evidence saying these were children of
tender years and that therefore, there evidence was
inadmissible under the Act. Court held that a child of tender
years refers to any child of the average apparent age of 14
years and whether or not a particular child is of tender year,
will depend on the good sense of judgement.
This was followed in the case of Omukono and another v
Uganda HC 191. Court held that a child of tender years in any
special circumstances means the child of the average and
apparent age of 14 years and the courts good sense of

The foregone cases means that well as 14 years is the bench

mark, not every child of the apparent age of 14 is of tender
The rationale is;
Children do not understand the nature and purpose of
Children are very easy to coach and are suggestible.
They do not have sufficient intelligence to observe
matters urgently and give reliable answer to questions
asked and so they are not reliable.
When receiving child evidence, the court must go through a
special procedure called a voire Dire.
A voire dire is an attempt by the court to determine if the child
understands in order to be sworn or if has sufficient
intelligence to give rational answers. Therefore usual questions
to ask include, name and age of child, names of parents,
residence, telephone number, whether the child goes to church
or mosque, types of food the child eats, places last visited if
any. From the answers, the court can assess and give an
opinion that the child will give rational answers or not.
Their evidence must be corroborated. If the child does not
understand the nature of the Oath, he can be allowed to testify
not on Oath as long as he is possessed of sufficient evidence in

courts opinion so that the evidence is reliable and there must

be corroboration.
NB: the testimony of a child of tender years without a voire
dire will certainly be quashed.

Compellability of witnesses
The general rule is that all persons are compellable to testify on
matters asked them even if such matters tend to incriminated
them- section 131.
Although there are exceptions to the general rule above in
public policy and children

Privilege refers to an extra ordinary right or power of comity
attached to a person by virtue of their status for example the
president, ambassador. Therefore competent witnesses are
excluded from testifying on the ground of privilege.

Types of privilege

Private privilege attaches to certain individuals in their

capacity e.g. husband and wife enjoy private privilege
[section 120 (a) EA]. This is to protect confidentiality
of relationships but the parties must be legally married
not cohabiting. The communication must be with in of
the marriage.

Professional privilege enjoyed by professionals in that

capacity for example advocates i.e. section 25.
advocate cannot be compelled to disclose
communications between him and client unless with his
or her clients consent. Otherwise there wasnt, client
could not disclose it.
Under section 126, privilege is extended to clerks of
advocates although there are exceptions where the
communication is for an illegal purpose or to perpetuate
a fraud.
NB: the professional privilege under the evidence Act seems to
be limited to only advocates and not to other professionals.

Judicial privilege [section 119]. Magistrates and judges

are privileged from being compelled to answer
questions with regard to their conduct in court.

Public privilege. This protects 4 main types ;

a. Official records and public records. Section 122
b. Official communications between public officers,
public employees. Section 123, public informers.
Section 124, whistle blowers are also protected.

The question is what type of information is privileged and if

the public officer decides not to diverge the information, can
the court go behind that faulty and investigate.
This has been considered in the case of Duncan v Cammel
laird and company and also Conway v Rimmer.
In Duncans case, the judge held that the document relevant to
production would not be produced if the public interest
requires that such document be revealed in open court. If the
government official objects, that should be treated as

The case of Conway was of a different view. It held that the

claim to privilege by the government is not conclusive and that
court must establish whether such claim was made in good
faith or has reasonable ground to support it. If the court feels
that the disclosure of such information would not seriously
affect then that information should be disclosed
The court can receive evidence in camera away from public or
it can severe the relevant part of evidence and leave the rest untempered with. The same was portrayed in the case of Re
Grosvenor Vol 2 1962 ch 1210 where Lord Dening held that
the claim to privilege cannot be conclusive. It must be made in
good faith and with reasonable ground that the disclosure will
not hurt the public interest otherwise the court will override the
claim to privilege in the interest of justice. The fore gone cases
indicate the courts have the residual powers to question a claim
to privilege.

Concept of a document
Under section 2(b) of the evidence Act, a document is any
matter expressed or described upon any substance by means of
letters figures or marks or by more than one of those means
intended to be used or which way be used for the purpose of
recording that matter. It includes all documents produced for
courts inspection.
Osborne defines a document as something on which things are
printed or inscribed and which gives information. This is
anything written capable of giving evidence therefore a writing
on stone, t-shits, cds, recordings of music, dvds are all
documents as long as the accuracy of recordings can be proved.
In the era of technological advancement, mails, whatsapps,
blogs, tweets are all documents
REF: in the case Salan dean v R (1966) EA 272
Therefore, the form that a document takes keeps changing with
advancement with society.
Documentary evidence constitutes real and testimonial
evidence. Real evidence is that one supplied by material
objects produced for the court to inspect


Main classification of documents

There are three main classifications;
a. Attested and unattested
To attestate is to witness the signing of a document. There
are some documents which are required by law to be
attestated for example a will must be witnessed by two
witnesses, land transfer, marriage certificate, caveat,
memorandum, and articles of association of a company,
powers of attorney.
Whenever a document is to be used outside the jurisdiction,
it must be witnessed by a notary public. Internally, it is
through the commissioner of oath.
The rules that govern the admissibility of these two types of
documents differ for example in trying to prove a will in
court, one of the attesting witness must appear (if they dont
appear, they must a swear affidavits)

b. Public and private documents

Section 73 and 74 of the evidence Act provides for
public and private documents.

Section 73- public documents include;

Documents forming Acts or records Acts of a
sovereign authority, official bodies and tribunal,
public officers, legislative, judicial, executive, of
Uganda or any other country and of any other
part of the Commonwealth, of the Republic of
Ireland or of a foreign country
Public records in Uganda for example
judgements, Land titles, memorandum and
articles of association,
According to section 74, all documents other than those
specified in section 73 are private. The main test to apply to
establish whether or not a document is private or public is
In Mercer v Denner (1904) 2 ch 538, court held that the test
of publicity is that the public is interested in the document and
is entitled to see it so that there is anything wrong with it, they
protect it. Therefore a public document is open to the public for
challenge or dispute any derives a certain amount from that. A
public document is for the public to make use of it and be able
to refer to it.
The rules governing the admissibility of public documents
differ from those relating to private documents. In a case of a

public document, it is enough if one furnishes a certified copy

of the document for example a land title is to be certified by the
registrar of titles, memorandum and articles of association
certified by the registrar of companies, but with private
documents, the original document must itself be produced for
court to inspect

c. Primary and secondary documents

Section 60 provides that the contents of a document must
either be proved by primary or secondary evidence
According to section 61, primary evidence is the document
itself, to original is produced for court to inspect. If it is a
contract, the original contract signed by the parties, therefore
even documents done in counter parts are original if they are
made by one uniform process.

counterparts of documents as against the parties who

did not execute them
Oral accounts of the contents of a document who
himself saw the document.
Prove of execution of a document/ prove of genuineness
Before a document is admitted in evidence, it must first be
proved for the court to be genuine i.e. it must prove first to be
what it purports to be and not a forgery. It must be
authenticated therefore a party tendering evidence of a
particular document or the party intending to rely on a
document must first prove it to be genuine or authentic,
otherwise court will not admit it.

-First rule

DPP v Nathan 1966 EA 13

Prove of genuineness of a document

Section 62 provides that secondary evidence includes;

-secondary rule

certified copies
copies made from original by mechanical process
copies made or compared with original

The party must offer the best evidence of the document i.e. it
must produce the evidence itself because primary evidence is
the best evidence.

-Third rule
This consists of the rule of the parole evidence rule that no
extrinsic evidence is admissible to prove the contents of the
document except the document itself.

The foregone are the cardinal rules of documentary evidence.

The question then becomes or is, how is the document proved
genuinely? This will depend on the type of document for
Under section 75, certified copies of public documents are
presumed genuine. They must be certified by responsible
public officer who has custody of those documents.

Private documents required by law to be attested (section 67).

If a document is required to be attested, it shall not be allowed
in evidence until one attesting witness has been called to prove.
However, there is an exception for example where no attesting
witness can be found or died or has gone to another
jurisdiction, recourse is had to section 68 then. It must be
proved that the attestation is in his right and the signature of
the person executing the document is in the handwriting of that
person. This section will apply where the attesting witness
cannot be found to testify, the handwriting of atleast one
witness must be genuine and thirdly the handwriting of the one
who signs is also genuine.
The other alternative is to bring someone expert in
handwriting. Section 45 of evidence Act provides for opinion
of handwriting when relevant. In the case of R v Gatheru s/o
Nangwara 1954 21 EACA 384 it was held that an expert need
not have acquired his special skill academically. It includes
skills acquired through practical experience. In Salumn v R
1964 EA 126, the appellant was charged with theft. The only
evidence against him was the possibility to commit the crime
and handwriting experts report.