TUMAINI UNIVERSITY DAR ES SALAAM COLLEGE (TUDARCO)

FACULTY OF LAW

BACHELOR OF LAW (LLB)

NATURE OF WORK : INDIVIDUAL ASSIGNMENT.

STUDENT’S NAME :
REGISTRATION NUMBER :
LECTURER : MADAM JANGU
SUBJECT : THE LAW OF EVIDENCE I

QUESTION
With the aid of case laws discuss the admissibility of evidence under Section 18 of the
law of Evidence Act, Cap 6 [R.E 2002]
Meaning of Admissibility in evidence law
The concept of admissibility in evidence law is determined that, A fact is admissible if
the law allows it to be proved by evidence. It is only allowed to be proved if it is
either in issue or has some degree of relevance to the facts in issue. 1
The term Admissibility refers to evidence which is capable of being legally admitted 2,
in other words the term make a reference to the type of evidence that a court of law
allow to be admitted for the purpose of determine existence or non existence of fact
in issue3.
However, admissibility is the rule which allows or govern the court to take evidence
in the court proceedings. In other ways admissibility is the means and the methods of
proving the relevant facts4.

Admissibility of evidence also refers to a state of things being allowed or accepted. It

refers to whether a piece of evidence is permitted to be given before the court. 5

The general rule on the relevance and admissibility of evidence is provided for under
Section 7 of the Tanzania Law of Evidence Act 6 that; all admissible evidences are
relevant, but not all relevant evidences are admissible.

A fact can be relevant only logically, for instance previous conviction or a fact can be
relevant logically and legally when it is so connected with the fact in issue as to form
part of the same transaction and it is one so declared by any of the provisions of the
Tanzania Evidence Act.7To be admissible therefore, a fact must be logically and
legally relevant.

1
V.P.Sarathi, Law of Evidence, pg 11
2
Bryan A. Garner, Black’s Law Dictionary 8th Edition ( St. Paul: West Publishing Co.; 2004)
3
Warutere A Law of Evidence
4
I.H.DENNIS,THE LAW OF EVIDENCE.P.25
5
Phipson & Elliot, Op Cit, pg 13
6
CAP 6 R.E 2002
7
CAP 6 R.E 2002
Wigmore and Peter Tillers on Evidence in Trials at Common law 8 gives two important
propositions with regard to this fundamental principle of evidence when he says none
but facts having rational probative value are admissible and all facts having rational
probative value are admissible, unless some specific rules forbids.

The general rule on evidence however, does not mean that all relevant facts are
admissible as there are many rules of the Law of Evidence excluding evidence of
relevant facts on some ground or other. There are also different circumstances in
which relevant facts may not be admissible.
The term evidence is also applied to facts which are allowed to be proved, that is,
which are admissible because they are relevant.9

Part I of the Tanzania Law of Evidence Act 10 Section 8-18 provides for facts which are
relevant. Also, within these Sections there are different conditions for these facts to
be admissible. If these conditions are not fulfilled, facts no matter how relevant they
may be cannot be admissible.
As the matter of fact and law, Section 18 of the Evidence Act Cap 6 R.4 [2002] should
be read together with Section 122 which presumes the course of business that the
Court may presume existence of certain facts which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct and public
and private business, in their relation to the facts of the particular case.
This is legally means that any statement that is presumed under Section 122 of the
Evidence Act must relate in one way or another to the transaction before the Court of
law as how was stated in the case of HENRY V COXON11
The Court held inter alia that a declaration in the course of duty in order to be
admissible it must be contemporaneous with the fact allergy by declaring and must
not be made by a person who has no interest to misinterpret the fact.

8
John Henry Wigmore and Peter Tillers, Evidence in trials at common law. Volume 7 Revised Edition 1983, Pg 25
9
Phipson & Elliot,(1980), Manual of the law of evidence, Street & Maxwell page 10
10
Cap 6 R.E 2002
11
[1878] LR 3 PD 156
Accordingly, Section 34(b) of The Evidence Act Cap 6 deals with statements made in
the ordinary course of business.
For example,
Where the question is whether a particular letter reached W, the fact that it was
posted in due course and not returned to the sender by the post administration, are
relevant and admissible under Section 18 Cap 6 of Tanzania laws.
Apart from the provisions under Section 18 of The Evidence Act basing on the
existence of course of business when relevant, other conditions are provided
subsequently from Section 8 to 17 of the Evidence Act as elaborated hereunder;

Section 8 of the Tanzania Law of Evidence Act 12 provides that facts which form part of
the same transaction are relevant (Res gestae principle). The Section however,
includes some conditions to be met before a relevant fact can be admissible before
the court of law. One of the conditions is that before the relevant fact can be
admissible before the court, that fact should be so connected with the fact in issue.
This is well illustrated in the case of RAMADHAN ISMAIL V. R13 where the court held
that the statement uttered by the child, though relevant could not be admissible
because there was no connection between the statements and the fact in issue which
was rape.

Another condition for the admissibility of relevant facts under Section 8 of the
Tanzania Law of Evidence Act is that, minutes are a matter of utmost importance. If
sufficient time has elapsed between the alleged transaction and the statement as to
allow for some intervention, the statement though it may be relevant becomes
inadmissible before the court of law. This is well illustrated in the case of R V.
BEDDINGFIELD14 where the statements made by the woman were not admitted by the
court to prove the fact in issue which was murder since there was lapse of time. It
was after the act was completed.

12
CAP 6 R.E 2002
13
[7] ZLR
14
[1879] 14 Cox C.C, 341
Under Section 9 of the Tanzania Law of Evidence Act 15 the admissibility of facts no
matter how relevant they may be has limited effects in proving the crime. In order to
prove the occurrence of crime those facts (evidence) must be corroborated, that is,
supported with other independent evidence. This is well illustrated in the case of
MKUBWA SAID OMAR V. S.M.Z16 where the court held that P.W.4 was a witness whose
evidence needed corroboration before it could be accepted and acted upon to prove
the occurrence of crime. This clearly shows that though facts may be relevant, they
may not be admitted by the court basing on the rules of the law of evidence which
may exclude the admission of relevant facts.

Section 11 of the Tanzania Law of Evidence Act 17 among other things provides for
facts which are necessary to establish the identity of a person are relevant and
admissible. Here, the evidence of identification parade may be admissible.
Identification parade is the second opportunity to check the memory of a witness to
identify a suspect. However, in order to safeguard it, identification should not take a
long time from the time of the commission of the crime and subsequent arrest. In the
case of WARYOBA MACHANGE V. R18 the court considered whether the identification
parade mounted four (4) years after the event could be relied on. The court held that
the fact that P.W.1 did not take requisite and timely action leading to the immediate
arrest of the bandits who were alleged to have been identified is an indication that
the purported identification was uncertain and unreliable, therefore such evidence no
matter how relevant it could be was not admitted in the court of law since a long
time had passed since the commission of the offence of robbery with violence.

Section 13 of the Tanzania Law of Evidence Act 19 provides for a situation when facts
not otherwise relevant may become relevant and admissible but this is subject to the
condition that such facts should show consistence between themselves and the fact in
issue. Failure to meet this condition may make facts though relevant, not to be
15
CAP 6 R.E 2002
16
[1992] TLR 365
17
CAP 6 R.E 2002
18
[1991] TLR 39
19
CAP 6 R.E 2002
admitted before the court. This is well illustrated in the case of RASHID ALLY .V. R20
in which the court stated that in any case in which there is a question as to the
identity of the accused, the fact of their having been given a description and the
terms of that description are matters of the highest importance of which evidence
ought always to be given. The court further stated that in order to justify conviction
solely on evidence of identification such evidence must be watertight and so, a black
suit was not a sufficient identifying mark to support the conviction since it did not
show consistence with the fact in issue which was personating a public officer and
obtaining money by false pretences. Therefore, when the evidence submitted before
the court does not show any consistence with the fact in issue; it cannot be admitted
before the court no matter how relevant it may be.

To every general rule there are exceptions, to the general rule on relevance and
admissibility which may make relevant facts not to be admissible. These exceptions
are as explained below:-

Hearsay evidence, this is the evidence of facts which the witness has not learnt
through his own body senses but learnt through the medium of others. Section 62 of
the Tanzania Law of Evidence Act 21 which requires oral evidence to be direct
enacting the general rule that hearsay evidence is not evidence, that is, not
admissible. Therefore, hearsay evidence which is highly relevant on account of the
contents of the statement and because the circumstances in which it was made
greatly enhance the probability of its truth is often excluded, as when attesting
witness’s death bed confession of having altered a deed was rejected in an action on
the document. However, there are situations in which hearsay evidence is admissible,
such situations are statements under Section 34 of the Tanzania Law of Evidence Act,
the res gestae principle, extra judicial confession and admissions, evidence given in
the former proceedings of Section 35 of Tanzania Law of Evidence Act and the
provisions of Section 62 (1) of the same Act.

20
[1987] TLR 97
21
CAP 6 R.E 2002
Evidence of opinion, Witnesses are generally not allowed to inform the court of the
inferences they draw from facts perceived by them, but they must confine their
statements to an account of such facts. This is well illustrated in the case of
HOLLINGTON .V. F HEWTHORN & CO LTD22 Goddard LJ said that;

“It frequently happens that a bystander has a complete and full view of an accident.
It is beyond question that, while he may inform the court of everything which he
saw, he may not express an opinion on whether either or both of the parties were
negligent”.

Also in the case of R V. CAHILL23 where the victim of an attempted rape was not
permitted to testify to her belief that her assailant intended to rape her, but was
required to confine her evidence to facts, such as his attempt to remove her clothes.
Opinion is always said to be excluded because it is irrelevant. However, expert
witness may testify on their opinion on matters involving their expertise.

Evidence of character, any evidence of the bad character of the accused might well
be regarded as relevant, but it is still in principle excluded in criminal cases. An
accuser’s person reputation among his neighbors as a man likely to have committed
the offence charged is usually inadmissible evidence of his guilt, although it might be
regarded as a relevant fact and witness opinions about a person’s disposition to act in
a particular way are generally excluded.24

Evidence of conduct on other occasions, it might be thought that the fact that
someone behaved in a particular way on one occasion is relevant to the question
whether he behaved in a similar fashion on the occasion which is being considered by
the court merely by reason of the general tendency of human behavior to repeat itself
nevertheless, evidence may generally not be given the parties. Conduct of a party’s
22
[1943] KB 587
23
[1998] VR 1
24
C.Tapper, Cross & Tapper on Evidence,(2007),Eleventh edition, page 77
misconduct on other occasions if it’s sole purpose is to show that he is a person likely
to have conducted himself in the manner alleged by his adversary on the occasion
which is under inquiry. In the case of BROWN .V. EASTERN AND MIDLANDS RLY CO 25
Stephen J stated that, “you must not prove, example, that a particular engine driver
is a careless man in order to prove that the particular accident was caused by his
negligence. The context makes it plain that Stephen J was concerned with conduct on
other occasions as a proof of disposition.

Moreover, the law relating to admission in civil cases (matters) is also provided for
under the provisions of Rule 1 – 7 of Order XII 26. Under this Order, It provides for
various circumstances under which parties to the suit may make admission. Among
the other thing a party may give notice of admission, notice to admit documents and
notice to admit facts.

In criminal matters a party to a proceeding (an accused person) is bound by his

statements or admission. In criminal cases admission may be made when an accused
person makes a statement to which suggests that he did the act for which he is facing
the charge. An admission in criminal matters is restricted to the commission of the
act and does not extend to the question of criminal intent, due to fact that an
admission of the commission of the act, (Actus Reus) plus the criminal intent ( Mens
Rea) is called confession.

There are three approaches which can be used in deciding whether evidences are
admissible in the Court of law as elaborated below;
(i) If the evidence is relevant, it cannot be excluded on the ground that it was
obtained by illegal action.
(ii) If the evidence is obtained by illegal action, it is never admissible due to its
illegality.

25
[1889] 22 QBD 393
26
Cap 33 R.E [2002]
(iii) Where evidence is procured by illegal action, it is a matter for the trial judge to
decide, in his discretion, whether to admit it or not, subject, in cases where the
evidence is admitted, to review by an appellate court.

As far as the provisions under Section 18 of Law of Evidence Act are concerned,
hereby is the discussion on the admissibility of relevancy of existence of course of
business in evidence law as provided under the aforementioned Section of Cap 6 [R.E
2002]
It is hereby argued that there are certain general facts that the Court is allowed to
admit in evidence one among them being facts showing a course of business otherwise
they can be referred as general facts that are relevant as per Section 18 of Cap 6 of
the laws of Tanzania.

The interpretation of Section 18 of the Evidence Act Cap 6 R.E [2002]

This Section clearly explains on the relevancy of existence of course of business that,

“When there is a question whether a particular act was done, the existence of any
course of business, according to which it would naturally have been done, is a
relevant fact”

Illustration:

The question is whether a particular letter was posted from destination A.

The fact that was the ordinary course of business for all letters put in a certain place
to be carried to the post and that the particular letter was put there are relevant.

Course of business: this means the ordinary course of trade or business, and covers
both private and public offices. It implies any business that which occupies the time
and attention and labor of men for the purpose of profit or improvement 27 this

27
Smith v Anderson, 15 Ch D 484
expression indicates the ordinary course of a professional avocation of trade or
business as in Ningawwa v Bharamappa28

Apparently, under section 1829 when the ordinary course of a particular business is
proved, the court is asked to presume that on the particular occasion in question
there was no departure from the ordinary and general rule. For instance, if letters
properly directed to C are left with his servant it is only reasonable to presume prima
facie that they reached his hands.
For example,
First, the question is whether a particular letter was dispatched. The fact that it was
the ordinary course of business for all letters put in a certain place to be carried to
the post and that the particular letter was put in that place are relevant.

Second, the question is whether a particular letter reached A, The fact that it was
posted in due course and was not returned to the sender is relevant.
The provision under Section 18 of the Tanzania Evidence Act is relevant with Section
16 and 17 of the Indian Evidence Act, 1872 which provides for the existence of course
of business when relevant.
Whenever any question as is referred to in section 1630 arises before a Civil Court in
any suit or proceeding, the Court shall, unless such question has already been
determined by a Revenue Officer, refer the question to the Revenue Officer for
decision and shall stay the suit or proceeding so far as it relates to the decision of
such question. Sub-section 2 of Section 16 of the same Act lays down that the civil
Court shall accept the decision of the Revenue Officer on the question and decide the
suit or proceeding before it accordingly. The provisions of Section 16 A are a logical
corollary to the provisions of Section 16. Since the Revenue Officer is constituted into
a Court of exclusive jurisdiction whenever any question arises which properly lies
within the ambit of the jurisdiction of the Revenue Officer, the Civil Court must refer
that question for decision to the competent authority31.
28
23 Bom 63 (66)
29
Cap 6 R.E [2002]
30
The Indian Evidence Act, 1872
31
Tulsiram Ramkisan vs Ramsingh Pannusingh Raghuwanshi,(1962) 64 BOMLR 41
The Section lays down that whenever it is necessary to prove that an act was done,
the existence of general course of business or office according to which it naturally
would have been done, is s relevant fact and proof of it is admissible. The section
relates to private as well as public offices.
From the above illustration, in the course of business there may be posting, post
mark and postal delivery whereby the posting of a letter may be proved by a person
who posted it or by showing a fact for which posting may be presumed. The post mark
on an envelope may be a prima facie evidence of three things that is to say the mark
was affixed by an officer of the post office concerned, the time of posting, the place
of posting. Therefore each of the fact stated therein is relevant and hence admissible
in the Court of law.

In ordinary life when the course of business usually followed is proved the probability
is that there was no departure from the common course of business in the particular
transaction. It is in this light that Section 122 32 allows courts to presume the existence
of any facts which it thinks likely to have happened regard being had to the common
course of natural events, human conduct and public and private business in their
relation to the facts of the particular case, Section 34(b) 33 deals with statements
made in the ordinary course of business. For example where the question is whether a
particular letter reached K the fact that it was posted in due course and not returned
to the sender by the post, are relevant and admissible under section 18 of the
Evidence Act Cap 6 R.E [2002]

Judges and magistrates in any proceedings, civil or criminal, have a general discretion
to exclude any logically relevant evidence on the ground that its probative value is
too low to justify the problems which would be engendered by its admission 34. This is
not regarded as discretion to exclude admissible evidence so it does not conflict with
the common law rules recognized in R v. Miller35

32
33
Ibid
34
Raymond Emson, (2004). Evidence, 2nd Edition, Palgrave Macmillan. Page 19
35
(1952) 36, Cr. App R, 169
A judge typically has broad discretion in determining whether evidence is admissible
or not. Generally, he makes a decision when one of the parties to a case presents
evidence at trial, or prior to trial, and the other side objects to its admissibility. Once
the objection has been raised, the judge usually listens to each party’s argument on
whether the evidence should be declared admissible. If the judge finds that the
evidence is inadmissible, the judge or jury cannot consider it when rendering a
verdict in the case.
As we have discovered before that relevant evidence is admissible in Courts of law.
Therefore, irrelevant evidence is generally inadmissible. So insufficient relevant
evidence and irrelevant evidence are inadmissible as per reasons stated in this
discussion. Thus, the applicability and legal implication of Section 18 of the Evidence
Act Cap 6 R.E [2002] is that the existence of any course of business which will be
naturally done as long as it is relevant evidence in the eyes of the law hence it is
presumed to be admissible in the Court of law.

Further, Admissibility of the evidence must be sufficiently relevant to be admissible

but sufficiently evidence is only admissible in so far as it is not excluded by any rule
of evidence. Admissibility presupposes relevancy and is founded on the law and not
logic.36 It is important to understand therefore the Tanzania evidence Act is pivotal in
the understanding of the law of evidence in mainland Tanzania. It shows not only
what types of evidence that may be accepted in proceedings, criminal or civil.

Admissibility deals with what is allowed and what is not after the former has been
sorted out. In the case of RAMBIHARI YADAR .V. STATE OF BIHAR 37 the Supreme
Court explained a point of difference between relevance of evidence and its
admissibility that relevancy and admissibility have different legal implications
because facts which are relevant may not be admissible.

36
Mapunda. B P, (2004) Relevancy of Facts, the open university of Tanzania Dar es Salaam.
37
[1994] 4 SCC 517
Relevancy and admissibility are therefore, not synonymous and they cannot be used
interchangeably. Field makes a point when he says:
I hereby quote the relevant potion of the ruling,
“It is safer….to use the term relevant as meaning logically probative and
admissible as meaning legally receivable.”
In this connection a reference is made to Mohan Singh v. Emperor38. In which
Sulaiman and Mukherii. JJ., observed that, “This report would be admissible Under
Section 32(2) of the Evidence Act as being a statement made by dead person in the
ordinary course of business and in the discharge of his professional duty”.
However, in the case of Ram Balak Singh v. State. Anant Singh and G. M. Prasad. JJ.
pointed out thus:
Dr. Bhola Mahto who had performed the autopsy over the dead body of Kedar was at
the time of the trial, out abroad, and his post-mortem report was proved by Dr. E. N.
Pathak by proving the handwriting and signature of Doctor Bhola Mahto on the post-
mortem report. Since Dr. Bhola Mahto was not easily available the post- mortem
report prepared by him would be admissible in evidence.

Conclusively, the admissibility of facts is that evidence which the court of law will
receive or admit for the purpose of determining the existence or non-existence of a
fact in issue. However, admissible evidence can be described as evidence capable of
being legally admitted, allowable and permissible. 39 Thus, facts are admissible if they
are relevant to the fact in issue or relevant fact.
Furthermore, the provisions of Section 8 to 18 are very important in the
determination of cases. It is important to understand the content and interpretation
of each of the provisions because they are central in the admission of evidence when
a witness is testifying in any case.

38
A.I.R. 1925 All 413
39
Bryan A. Garner, Black’s Law Dictionary 8th Edition ( St. Paul: West Publishing Co.; 2004)
BIBLIOGRAPHY
STATUTES
The Evidence Act, Cap 6 R.E 2002
The Indian Evidence Act, 1872
The Civil Procedure Code, Cap 33 R.E 2002

BOOKS
John Henry Wigmore and Peter Tillers, Evidence in trials at common law. Volume 7
Revised Edition, 1983
Bryan A. Garner, Black’s Law Dictionary (2004), 8th Edition (St. Paul: West Publishing
Co.)
Cross & Tapper on Evidence (2007) Eleventh Edition, (Oxford university press)
Raymond Emson, (2004). Evidence, 2nd Edition, Palgrave Macmillan
V.P. Sarathi, Law of Evidence, 7th Edition (2019), Eastern Book Company
I.H.Dennis, (2002) the Law of Evidence 2nd Edition, Street & Maxwell

MANUALS
Mapunda. B P, (2004) Relevancy of Facts, the open university of Tanzania Dar es
Salaam
Phipson & Elliot, (1980) Manual of the law of evidence, Street & Maxwell

CASE LAWS
HENRY V COXON [1878] LR 3 PD 156
RAMADHAN ISMAIL V. R [7] ZLR
R V. BEDDINGFIELD [1879] 14 Cox C.C, 341
MKUBWA SAID OMAR V. S.M.Z [1992] TLR 365
HOLLINGTON .V. F HEWTHORN & CO LTD [1943] KB 587
WARYOBA MACHANGE .V. R [1991] TLR 39
R V. CAHILL [1998] VR 1
BROWN .V. EASTERN AND MIDLANDS RLY CO [1889] 22 QBD 393
NINGAWWA v BHARAMAPPA 23 Bom 63 (66)
SMITH V. ANDERSON, 15 Ch D 484
RAMBIHARI YADAR .V. STATE OF BIHAR [1994] 4 SCC 517

MOHAN SINGH V. EMPEROR A.I.R. 1925 All 413