WITNESSES

-Deals with competence and compellability

-Competence refers to the capacity of someone to give evidence in court
-Compellability refers to whether one can be subjected to the compulsory process of
the court.
-S.133 no particular amount of witnesses is required to prove a fact.
-S.117 any person shall be competent to testify unless court considers that they are
unable of understanding questions put to them. (GENERAL RULE)
-S.101 MCA, S.40 TIA, Witness evidence must be given on oath, S.58, all facts expect
documents can be proven on oral evidence (Witness evidence must be oral and
should be direct (S.59)
-S.8 and 9, affirmation can be taken in place of an oath. (Omychum v Baker, in which
they refused to hold a Bible and Q’uran but instead took their affirmation by touching
the feet of their priest as was their culture of Hinduism.
CATEGORIES OF WITNESSES.
1) DUMB WITNESSES
S.118 a witness unable to speak may give evidence in manner which is intelligible by
writing or signs in open court and it is oral evidence. Hamisi v R, it was a trial murder
and the only witness was the daughter of the deceased who was deaf, the judge
overruled her evidence but on appeal it was held that such a witness would be a
competent one if she understood her path and if intelligence could be conveyed from
the signs.
-S.5 (2) of the oaths act allow disabilities to give evidence in any way possible.
-S.3 (3) persons with disabilities act, non-discrimination of these people basing on their
disabilities.
-Article 32, ordinarily termed as people who can’t give evidence, but doesn’t eliminate
them from giving evidence.
-S.60, mental health act, person with such disabilities can be competent witnesses in
instances where they are in their right senses and can understand the facts out before
them.
2) JUDICIAL OFFICERS
S.119, no judge or magistrate unless by special order by court to which they are
subordinate be compelled to answer any questions as to his/her conduct in court.
-Where they are not acting in the course proceedings they are treated as any ordinary
person.
3) ACCUSED PERSONS
-General Rule: S.110 MCA, Accused is a competent witness for defence but can’t be
compelled to give evidence; the accused has three options, give evidence on oath
sworn evidence (cross examination), give it not on oath or say nothing.
-Accused person is not compellable and is not competent for the prosecution. (R v
Ndara)
4) ACCOMPLICES
S.132, an accomplice shall be a competent witness against an accused person and a
conviction is not illegal merely because it proceeds upon the uncorroborated testimony
of an accomplice.
-In judicial practice the evidence of accomplices requires corroboration however onus
is on the court. In Morjaira v R, driver of a port sold goods that didn’t belong to him to
the appellant. And the issue was whether court could rely on the uncorroborated
evidence of the accomplice, it was held with due warning, the court can properly and
safely act on an accomplice’s uncorroborated testimony.
5) SPOUSES
-S.120 (1) (a) in criminal proceedings, husband or wife shall be a competent but not
compellable witness for the prosecution.
- (1) (b) competent and compellable for defence.
-S.120 (2) husband and wife means those of a subsisting marriage recognized under
written law or customary law.
-Alai v Ug, customary marriages recognized, to protect the confidentially deemed to
exist in the relationship of marriages.
-Uganda v Peter Kato, wife compelled to give evidence against husband in murder
case because he hadn’t satisfied all the customary requirements thus not married.
-In the case of R v Lampworth, the husband was accused of inflicting grievous harm
on the wife and she was deemed to be competent and compellable as a witness for
the prosecution. However in Hoskins V Metropolitan Police, the husband had
inflicted injury on the wife while cohabiting and she was reluctant to testify and it was
held she couldn’t be compelled.
-R v Kihandika, accused was married to two wives and was charged with the murder
of one, court held that there was no reason for the co wife not to be a compellable
witness.
-in civil proceedings wife shall be both competent and compellable (S.121)
6) CHILDREN OF TENDER YEARS
-S.117, child of tender age can cause some incompetency.
-Key question is whether because of that age child cannot understand the question or
give rational answers to those questions.
-Definition not given but decision is courts as to whether the child is of a tender age or
not.
-Kibangenyi Arap Kolil v R, convicted of murder of his cousins evidence was given
by two boys aged between 9-14 and only corroborated medically. An issue of the
competence of the two boys was tested and it was held that the apparent age of tender
years is 14 years therefore the evidence rejected an appeal allowed.
-Oloya v Uganda, the accused 16 was charged with offense of failing to prevent a fire
from spreading and prosecution called a witness aged 7 years to give an eye witness
account, there was no proper voire dire that was conducted to ascertain whether the
child understood the oath and whether he/she possesses sufficient intelligence and the
duty of telling the truth, therefore testimony dismissed as well as conviction.
-S.42 Childrens Act, children should be protected at all stages of a trial.
-S.8/9 Oaths Act (Can use affirmation)
-Furthermore, a child is incompetent of making a dying declaration and this was shown
in the case of R v Pike, a dying declaration of a child of 4 years was held to be
inadmissible.
COMPELLABILITY
-S.131, a witness shall not be excused from giving a testimony that would incriminate
him/her to the offence that was charged, but can’t be used against him in a subsequent
criminal matter.
-S.94 MCA, court has powers to compel and summon any person before it
-S.95, warrant any person to appear before it and a
-S.99 MCA, fine is usually imposed on refusal.
-Exceptions to this rule (Usually conferred by statutes; professional privilege, private
privilege and public privilege.
-
PRIVATE PRIVILEGE; enjoyed by private persons as a result of private person status
(Spouses S.120)

PROFESSIONAL PRIVILEGE
-S.125, no advocate shall at any time unless with consent of the client disclose any
information in the course of his employment given by the client unless it is to perform
an illegal purpose, or any crime or fraud has been committed since the
commencement of the employment.
-R v Cox and Railton, defendants charged with conspiracy to defraud a judgment
creditor of the fruits of the judgment by backdating the dissolution of their judgements,
the prosecution brought a solicitor who the defendants had inquired on commiting the
fraud and the issue was whether the lawyer had privilege, and it was held that legal
privilege does not attach where the advice sought was being obtained for the purpose
of committing a crime.
-S.126, S.125 applies to clerks, interpreters and servants of advocates.
-S.128, no one shall be compelled to disclose any information btn his/her legal advisor
unless offers themselves as a witness.
-S.119, no judge or magistrate unless by special order by court to which they are
subordinate be compelled to answer any questions as to his/her conduct in court.
-S.124, no magistrate or police officer shall be compelled to state where they got any
info in the commission of a crime and also a revenue officer in the commission of a
revenue offence.
PUBLIC PRIVILEGE
-S.122, no one permitted to give evidence derived from unpublished official records
relating to affairs of state, except with permission from the head of the department,
who can withhold or give it as he sees fit.
-S.123, no public officer is compelled to disclose communications made to him or she
in the course of their employment when they believe public interest would suffer.
-S.5 Access to Information Act, every person has a right to access information
available excepts where it prejudices state sovereignty and security.
-S.2 (2) privilege also provided for cabinet meetings records and court cases that
haven’t been concluded.
-S.26, an officer might refuse another to access information if the privacy of a person
would be breached.
-Duncan v Camel Laird, a submarine sank to the ground and killed 99 people and
suits were brought in negligence by representatives of the deceased. And information
to the production of the submarine were withheld by the minister and said to be against
public policy court held release of such documents is at the discretion of the minister.
-However in Conway v Rimmer, decision was reversed and court held that documents
should be brought for inspection to the court which well then determine whether they
are justified to be withheld.
EXAMINATION OF WITNESSES
Basically three stages ;( S.136)
-Examination in Chief: by party who calls the witness
-Cross Examination: examination by the adverse party
-Reexamination: examination by witness who called the party after cross examination.
-S.140, any questions which suggests the expected/wished answer is known as a
leading question.
HOSTILE WITNESS
-A witness who was supposed to give evidence for one side but instead gives evidence
in favor of the other side.
-S.153, court may permit the person who calls the witness to put any question to him
or her which might be put in a cross examination.
-S.154, credit of a witness may be impeached, by evidence of persons who believe the
accused to be unworthy of credit, proof of bribes, former statements inconsistent with
current.
-Okwonga Anthony v Uganda, the appellant was charged and convicted of murder
and kidnapping in the trial court, an issue arose as to the witness of the prosecution
deemed as a hostile witness, this was affirmed by the court which stated that a hostile
witness is one who completely sways their statement made to the police in this
instance PW1 who was rightfully termed a hostile witness.
REFRACTORY WITNESS
-When called to testify, refuse to appear, refuse to answer questions, refuse to be
sworn in, never corporative to court process.

DOCUMENTARY EVIDENCE
-S.2 defines a document as any matter expressed or described upon which any
substance by means of letters, figures or marks or more than any one of these which
may be used for the recording of matter.
-It means a lot more than its ordinary meaning and can encompass tombstones and
tape recordings (Salau Dean V R, tape recordings were considered documents)
-R v Maskud Ali, the two appellants to a murder charge were brought into the town
hall by the police who left a microphone in the room they were in which was connected
to a tape recorder. They were recorded on a tape and prosecution sought to use the
tape as evidence, and issue was whether the tape was admissible as documentary
evidence, although the tape was imperfect with voices from those on the streets it was
deemed to be very important and admissible and it was held that a tape recording is
admissible provided it is accurate and the voices can be properly identified.

CLASSIFICATION OF DOCUMENTS.
-Three main types, and they go to the method of proof.
1) ATTESTED AS OPPOSED TO UNATTESTED DOCUMENTS
-To attest means to witness an event taking place, and in documents it means to
witness the signing of a document which can’t be done by the one signing the
document and some documents require attestation (Wills, employment contracts)
-S.67, if a document is required by law to be attested, it shall not be used as evidence
until At least one attesting witness has been called for the purpose of proving its
execution. Thus the general attestation is for the weaker party.
-S.68 in case an attesting witness can’t be found, it must be proved that the attestation
of At least one witness as well as the executor are in their handwriting.
-S.69, when an executor admits to a document that is attested, it shall be sufficient
proof of the execution against him.
-S.70, if the attesting witness doesn’t recognize the document, other evidence maybe
called to prove the genuineness of the document.
-Unattested documents don’t require to be witnessed in order to be valid.
-S.71, an attested document that doesn’t require attestation may be required to be
proved as if it is unattested.
-Therefore S.66 comes into play which states that when a document is wholly or
partially signed a person the signature or handwriting alleged to be of that person must
be proved.
2) PRIVATE AND PUBLIC DOCUMENTS
-Public documents are those available to public scrutiny and access.
-S.73, public documents include; documents forming the acts or records of the acts of
the sovereign authority, of official bodies and tribunals, of public officers, legislative,
judicial and executive whether of Uganda, Any Commonwealth country or foreign
country and
-Also public records of private documents kept in Uganda. In the case of Kafeero v
Turyagenda, in this case there was an agreement which was registered after 7 years,
and court held that it was a public document, non-registration doesn’t render the
document void and there is no time limitation.
-Private documents are enshrined in S.74 as all those that are not part of S.73, in the
case of Tootal Boodhurst V Ahmed and Co, it was on how to distinguish between a
private and public document, and the difference was attributed mainly to the rules that
govern the admissibility of the two documents that is for a public document court can
rely on a certified copy while for private documents, the original is usually relied on.
3) PRIMARY AND SECONDARY DOCUMENTS
-S.60, the contents of a document may be proved by either primary or secondary
evidence.
-S.61 primary evidence means the document itself produced for the inspection of the
court and these include, where a document is executed on several parts, each part is
primary, when they are all made in one uniform process.
-In the case of DPP v Nathani, he had been convicted and accused of fraud, for
selling air tickets without a license. Prosecution adduced evidence from an official
agency list and it was contested to be secondary evidence, it was held that it was part
of a number of documents made by one uniform process and therefore admissible.
-Secondary Evidence, S.62 which means certified copies, copies made from the
original by mechanical processes, copies made from the original or compared with the
original, counterparts of the documents as against the parties who did not execute
them, oral accounts of the documents given by someone who has seen them.
PROOF OF EXECUTION OF DOCUMENTS
-General Rule is in S.63, all documents must be proved by primary evidence except in
cases mentioned.
-Proof of execution can also be called proof of genuineness.
-Before a document is admitted in court it must be proved to court that it is a genuine
document, in Stamper v Griffen, where it was held that no writing can be received in
evidence as genuine writing unless it has been proved so and same for no forgery, and
therefore a writing is nothing unless accompanied by some proof.
HOW CAN GENUINENESS OF A DOCUMENT BE PROVED??
1) Proof of public documents.
-S.75, any public officer having the custody of a public document which any person
has a right to inspect shall give a copy on payment of legal fees and a certificate at the
foot showing it is a true copy, dated and with the name and title of the officer.
-S.76, stated that such certified copies may be produced in proof of the contents of
public documents.
-S.77, proof of other documents
-S.78, the court shall presume any certified copy to be genuine if the document is
substantially in the way presumed by law.
-S.78 (2), the court presumes the official character of the officer who signed the
document.

2) Proof of private documents

-Required to be attested, S.67, if a document is required by law to be attested, it shall
not be used as evidence until one of the witnesses has been called to prove its
execution.
-The general rule, is attestation protects the weaker party.

Exceptions.
-S.68 in case an attesting witness can’t be found, it must be proved that the attestation
of At least one witness as well as the executor are in their handwriting.
-S.69, when an executor admits to a document that is attested, it shall be sufficient
proof of the execution against him.
-S.70, if the attesting witness doesn’t recognize the document, other evidence maybe
called to prove the genuineness of the document.
-One of the other ways to prove the genuineness is enshrined in S.90, in which any
document proved to be 30 years old is produced from custody deemed to be proper,
the court may presume that indeed the document which purports to be in the
handwriting of that person is in their handwriting and duly executed and attested.
-Evidence by estoppel, if the person against whom the document is sought to b
adduced has prior relied on the document he is stopped from denying genuineness.

DOCUMENTS NOT REQUIRED TO BE ATTESTED.

-S.71, an attested document that doesn’t require attestation may be required to be
proved as if it is unattested.
-Therefore S.66 comes into play which states that when a document is wholly or
partially signed a person the signature or handwriting alleged to be of that person must
be proved.
RULES FOR PROOF OF CONTENTS OF DOCUMENTS.
-General rule; S.63 documents must be proved by primary evidence (must adduce
original)
-According to Phipson on Evidence, the best evidence which the nature of the case
permits must be given. (As was stated in Omychun v Baker by Harding J)
-Vincent v Cole, it was held that reliance on the rule that what is in writing shall only
be proved by the writing itself was brought forth as recollections by witnesses can
easily be mistaken.
-This best evidence rule originated from primitive times where once a document was
presented it was regarded as sacrosanct and one almost always lost, so exceptions
were formed to not only look at the original document.
-These exceptions codified in the Evidence Act, S.60 contents of a document may be
proved by both primary and secondary evidence.
-S.64 provides for the instances in which secondary evidence may be admitted.
a)-where it is in possession of the person to be used against and doesn’t release it on
notice, someone outside the jurisdiction of the court, hands of someone legally
supposed to produce it but doesn’t produce it.
-In the case of Lakmani Ramji v Shejji and sons, the appellant sued for payment of
extra work and the respondent said he sent a cheque of payment with a covering letter
which the appellant claimed to have never got, the respondent submitted a carbon
copy of the letter as evidence, and the issue was whether the copy was admissible,
and court held the copy was admissible in line with S.64 since the party in possession
had not released the original on notice.
-64b) when the contents of the original have been admitted in writing by the person
against whom they are sought to be proved or by his rep.
-64c) contains 3 main circumstances; when original is lost or destroyed, in someone’s
hands who is not legally bound and doesn’t on notice, and when for some reason it
would be delayed to release it.
-64d) the original is not easily movable (eg a building with marks on it that’s the
evidence)
-64e) where it is a public document.
-64f) where a certified copy is permitted (S.77)
-64g) where the document consists of numerous accounts which can’t be examined
easily by court and yet the fact to be proved is the general result (eg fraud case
showing withdrawals)
-64(5) for such instances in g) a person skilled in that area will be employed.
-In John Baptiste D’Sa v R, the appellants and bank clerks were convicted of
fraudulent false accounting and stealing from their employer, a bank inspector gave
evidence on his searches, and this was contended as it didn’t contain original
documents or copies and In admitting evidence, court held that it must be shown that
the witness is skilled, witness examined the documents, there are numerous
documents, and intention is for the general outcome.
EVIDENCE BANKERS BOOKS ACT
-Creates privileges In favor of banks and books in as far as giving evidence is
concerned.
-All books used in the day to day affairs of the banks (ledgers, day books, cash books)
-S.3 there is no need to bring the original banker’s book, copy is accepted however it
should be verified as a true copy.
-S.4, officer of the bank must prove that indeed the book was indeed one of the
ordinary books used by the bank in the ordinary course of business.
-S.6, banker is not compellable to produce documents on his books or to appear as a
witness for which they are not party except special cause (professional witness)
-NB: if you don’t refute the documentary evidence at that point, or concur or intend to
use the document acquiescence shall be implied. Shown in the case of Popatalal v
Nanji, it was held where there is no objection to secondary evidence, the party failing
to object is presumed to have waived that right and can’t object later.
PRESUMPTIONS PERTAINING TO DOCUMENTS.
-A presumption is an inference which court makes of the existence or nonexistence of
certain facts.
-They are both rebuttable and irrebutable presumptions for the former evidence is
adduced while for the latter no evidence is adducible.
-S.3 (1) whenever it is provided by the act court can presume a fact, and can declare it
proved or requires and call for evidence.
-S.3 (2) whenever it is provided by the act that court shall presume a fact, it is proved
until disproved.
-S.3 (3) if one fact is declared conclusive proof of another fact and the first fact is
proved then the court shall presume the other fact has been proved.
-First presumption, S.78, the court shall presume any certified copy to be genuine if the
document is substantially in the way presumed by law.
-S.79 presumption as to document produced as record of evidence, when a document
is produced as a record of evidence in a judicial proceeding, and signed by a
magistrate or judge court shall presume the evidence to be genuine.
-In the case of R v Mitha, the accused was charged with perjury, prosecution
adduced evidence from the trial court, and this evidence was contended as being
never said and it was held that court may presume that the evidence recorded was that
given and used against the defendant.
-S.80 presumption on newspapers, gazettes, private acts and other documents. (Court
shall presume the genuineness of every document of such if it is in proper custody and
in the form presumed by law)
-S.81 presumption as to documents from UK and Ireland being admissible without
official stamp or seal. In the case of Venn v Venn, a document was sworn before a
commissioner of oaths in England, and issue of its admissibility in Kenya were brought
forth and it was held to be admissible.
-S.82 presumption as to maps or plans made by authority of the government. In the
case of Magoti s/o Matofali v R, sketch maps Drawn by police and issue was
whether the come under the provision made in S.82, and it was inadmissible because
the police are not experts.
-S.90, documents thirty years presumed to be genuine.
-S.89 courts shall be presume that any document called for and not produced after
notice to produce was attested, stamped and executed as required by law.
EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
-This refers to the admissibility of extrinsic evidence to prove or vary the terms of a
document.
-The general rule is that where there is a written document, any other evidence to vary
or contradict is inadmissible.
-Principle mainly applies in 2 situations;
1) If you have a contract reduced to writing therein the terms of the contract must be
proved the document itself, no oral evidence to vary or contradict is admissible. In the
case of Kilonzo s/o Kanyanya v Purshotam Brothers, it was held that no evidence
is receivable as to the nature of the case except the document itself.
2) With regard to transactions in which it so mandatory to be writing, the transaction
can only be proved by the document.
PAROLE EVIDENCE RULE.
-Rule that excludes oral evidence as part of documentary evidence.
-S.91 when the terms of a contract, grant or disposition have been given in the form of
document, no evidence shall be given in the proof of these terms except the document
itself.
-S.92 when the terms of the contract have been proved, no oral statement between the
parties shall be admitted as between the parties for purposes of varying or
contradicting or adding to its terms.
-Oral evidence may be admissible if it doesn’t affect the terms and conditions of the
contract/disposition. Folkes v Tharkar, Appellant sued for a sum of money in respect
of two consignments of goods, and the respondents alleged that they had written and
signed a guarantee in May and the appellant put oral evidence forth to show that the
date was wrong, issue was whether the evidence was admissible and it was held that
the date wasn’t part of the contract and therefore evidence admissible.
EXCEPTIONS TO THE PAROLE EVIDENCE RULE.
-S.91, when a public officer is appointed by writing, but there is proof of action as such
an officer, then the writing needn’t be proved.
-S.91, if a will has been admitted to probate in Uganda, it may be proved by the
probate, in applying for probate one must prove the genuineness of the will in court
after which a probate is granted.
-S.92a) any fact may be proved which would invalidate any document, or which would
entitle any person to any decree or order relating thereto, such as fraud, intimidation,
illegality, want of due execution, want of capacity in any contracting party, want or
failure of consideration or mistake in fact or law. In the case of Patel v Patel, this was
a suit on a bond, the defendant argued that it was a money lending agreement and
since plaintiff wasn’t a licensed money lender indeed the contract was void and an
issue to the admissibility of oral evidence was put forth, and it was held in the proof of
invalidation of a contract, oral evidence can be admitted.
-S.92b) the existence of any separate oral agreement on which the document is silent
and which is not inconsistent with its terms might be proved. IN the case of Hansen
and Soehne v GK Jetha Ltd, the document was a letter affirming a contract of
guarantee and it was handed to the three respondents to sign and procure the 4th
signature. Document was returned with only signatures for the three who stated that it
was sufficient, it was held it was silent whether the signature of all 4 was a condition
and therefore oral evidence was admissible
-S.92c) the existence of any oral agreement constituting a condition precedent for the
coming into effect of a contract is admissible. In the case of Ghai v Mandal, it was
agreed between the parties at the signing of the cheque that it wouldn’t be cashed until
a certain amount of monies was paid to the respondent, the plaintiff attempted to cash
in the cheque without paying the monies and was stopped in which he sued and in
admissibility of the oral evidence, the plaintiff contended that all the evidence was
contained in the written contract. Court held that when agreed by parties that a
contract won’t have effect until a certain condition is fulfilled, oral evidence will be
admissible to show condition is not performed.
-S.92d) The existence of a separate and distinct, subsequent oral agreement to
rescind or modify any contract is admissible, provided it is not a contract, grant or
disposition of property which is required by law to be in writing. Ishakiya v Jusub, the
plaintiff sued for unpaid rent and pleaded an oral agreement as to how much was to be
paid, the respondent contended that for such agreements it must be writing, it was held
that when an agreement is required by law to be in writing it can only be modified by
writing however in such an instance it was not the case and therefore oral evidence
admissible
-S.92e) The existence or any usage or custom to which a particular type of contract or
transaction is usually subject, is admissible only if allowing it would not be repugnant to
or inconsistent with the express terms of a contract. In the case of Brown v Byrne
This case briefly says that the reason for the exception is that such evidence of custom
and usage is admissible in order to get at the true meaning of what the parties agreed
on in the document.
-S.92 (f) - Any fact may be proved which shows in what manner the language of the
document is related to the existing facts. This is another rule of interpretation to help
court establish what the parties intended.
-S.93-100(Rules of interpretation)

CORROBORATION
-Corroborative evidence is that evidence which tends to support or confirm other
evidence already given in court and it has to be from an independent source.
-It was defined in the case of R v Baskerville, in this case B had been charged with
gross indecency with 2 boys, the only evidence was the testimony of the boys who in
court came to be accomplices and therefore evidence needed corroboration and it was
defined as independent evidence connecting the accused to the crime.
-In DPP v Kilbourne, the accused was convicted of buggery and indecent assault
towards boys, evidence was given against him for the act he was charged for in 1970,
and other evidence for a subsequent act in 1971 by a group of boys, the judge directed
that the evidence of the boys in 1971 if testimony deemed truthful is corroborating
evidence.
-Basic reason for corroboration to be to prove the reliability of the evidence, in some
cases, for example sexual offences the only evidence is usually the accused word’s
over the victim hence the need for corroborative evidence.
-Corroborative evidence is an exception to the rule in S.133 that no particular amount
of witnesses will be required to prove a crime because it calls for more witnesses to
corroborate.
-Corroborative Evidence is usually required in two scenarios; where there is a statutory
requirement and where it is required as a matter of judicial practice or prudence.
CORROBORATION AS A STATUTORY REQUIREMENT.
-Some offences will be required by statute to be corroborated.
1) Offences of Procuration.
-For example S.131, 132 PCA, living off benefits of a prostitute, it is easily alleged and
evidence is not easily adducible.
2) Speeding
-S.120 Traffic Act which accepts the allowing for opinion evidence would open up to
wrongful convictions and therefore it provided that one cannot be convicted solely on
the testimony of only one witness. In Crosland V DPP, an accident reconstruction
expert had inspected the crime of the scene and had affirmed the speed test of an
opinion witness and therefore the conviction was rightly given because the other tests
conducted were deemed as corroboration.
-S.120 (2) of the Traffics and Road Safety Act, one can’t be convicted solely on the
evidence of a witness as to the speed of the driver. Nicholas v Penny, Police called
forth to give evidence on the speed of the car and used the speedometer to show that
the driver was over the limit, the conviction was contended and it was held that the
evidence would be admissible with the corroborative evidence of the speedometer.
-Reform, Opening up the courts to accepting opinion evidence leading to wrongful
convictions.
3) Perjury
-S.98 PCA, one cannot be convicted of perjury solely on the evidence of one witness.
4) TREASON
-S.23, no person charged with treason or any such felony may be convicted except on
a plea of guilt or on the evidence of two witnesses to an overt act of treason or same
kind of felony.
5) CHILDREN OF TENDER YEARS.
-S.101 MCA, when the child understands the natural of the oath and has sufficient
intelligence he shall be sworn in. Kibangeni Arap Kolil v R, evidence of two boys
between 9-14 was adduced, there was no corroborating evidence given to the
statement of the two boys and also the court had not adduced any warning as to the
movement on of a sentence without corroboration for evidence given by children of
tender years and therefore conviction was quashed.
REFORM -Evidence Act doesn’t define what children of tender years is, Case Law
puts it at below 14 years but this is left to the discretion of the court to determine what
they feel like (Susan Kigula case)

CORROBORATION AS A REQUIREMENT OF JUDICIAL PRACTICE

-The only difference between this and the former is that the conviction based on this
may not be fatal as court may not convict on uncorroborated evidence. Discretion is
the court’s but must caution themselves.
1) ACCOMPLICE EVIDENCE
-S.132, Accomplice is a competent witness against an accused person and a
conviction is not merely illegal because it’s based on the uncorroborated evidence of
an accomplice.
-In Davis v DPP, Lord Simmons held that it is the duty of the judge to warn the jury on
proceeding to convict on basis of accomplice evidence without corroboration in lieu of
this warning a conviction will be quashed. (And also in this case the question of who
are accomplices was answered; parties who participate in the crime, receivers of
stolen goods or parties of another crime committed by the accused which evidence is
admitted under the same rule.
-Requirement of corroboration extends to accomplice evidence in matrimonial
proceedings. In the case of Galler v Galler, it was held that an adulterer in a divorce
hearing who admits to their adultery is merely an accomplice and this evidence would
be required to be corroborated.
2) SEXUAL OFFENCES
-Evidence must be corroborated as a rule of judicial practice.
-Chila v R, judge warned the assessors and himself of acting upon the uncorroborated
evidence of the complaint. And may not convict in the absence of corroboration.
-Glanville William stated that this is necessary because accusations on sexual
offences can come because of a plethora of reasons including spite jealousy and the
like. (Rationale)
-Medical evidence has been deemed as the best corroborative evidence for sexual
offences through things like a semen test and more so.
-In The case of Ngobi v R, the child was defiled and infected with an STD by the
accused who claimed to have no knowledge of the girl and on a medical test she was
found to have the same strain of STD as the accused and it was deemed good
corroborative evidence.
-Kongwea v R, was raped and escaped when the accused was sleeping, made a
complaint to her sister and there was no corroborative evidence, but court took a
warning and convicted the accused on the basis that the complainant was a truthful
witness.
-Tambala v Uganda, it was held that the requirement for corroboration in such
incidences in line with previous offences is derogatory.
REFORM
-Corroboration should become the rule of law as opposed to left to the discretion of the
court.
3) DYING DECLARATIONS
-Must be corroborated as a matter of judicial prudence.
-Migezo Mibinga v Uganda, The appellant was convicted of manslaughter and the
only evidence was the dying declaration of the deceased “you are the one who beat
me” while pointing at the accused, the judge relied on the conduct of the accused as
saying nothing to the allegations. On appeal it was held that as much as there is no
rule to corroboration of such evidence, a judge should take a warning in admitting a
conviction, and corroborative evidence can be in the demeanor or conduct of the
accused who can be deemed to have acknowledged the truth of the statement.
4) CONFESSIONS
-Tuwamoi v Uganda, the appellant allegedly came to the home of the deceased and
killed her with his spear, and made a confession to the police which he made a
complete denial the next day and the prosecution only tethered the confession, it was
held that a trial court should accept with caution a repudiated or retracted confession
and must be fully satisfied that indeed the confession is true, court should tender all
information passed by the accused and direct itself dangerous to act upon a retraced
confession in the absence of corroborative evidence.
5) IDENTIFICATION.
-Requires corroboration especially in identification of a single witness under difficult
conditions.
-Abdulla Bin Wendo v R, the appellant was of murdering a watchman at night and
convicted on only one witness identification. It was held that as much as a conviction
can be made, court should take with the greatest care this evidence especially in
difficult conditions for identification and in such cases corroborative evidence is
required.
6) CHILDREN OF TENDER YEARS
Both the law and judicial practice requires this. Oloo s/o Gai v R, he relied on the
evidence of a 12 year old to hold a conviction and didn’t warn himself and it was held
to be erroneous and conviction quashed.
REFORM
-Grantville Williams, this evidence must be corroborated because children can be
easily coached and are easily convinced and not of completely independent mindset.
-Corroboration in some instances is given such a hefty criteria and thus causes a lot of
backlog in cases due to the aspect of corroboration required to satisfy a conviction.

BURDEN OF PROOF.
-The law of evidence prescribes the rules on how facts may be proved, who may prove
such facts and the procedure for proving such facts.
-Burden of proof is the obligation to prove certain facts in a case.
-S.101 whoever desires any court to give judgement on the existence of facts which he
asserts must prove that those facts exist and when one is bound to prove the
existence of facts it is held that burden of proof lies with that person?
-S.102 burden of proof lies with the person who would fail if no evidence at all were
given on either side.
Burden of Proof in Criminal Cases
-Art.28 of the constitution provides for the presumption of innocence until proven guilty
and therefore prosecution has the duty to prove the case against the accused.
-Woolmington v DPP, the man killed his wife and pleaded accident, but the trial court
held that if an unlawful killing was proved, burden was shifted onto the defendant to
prove it was an accident and the defendant appealed. In the appeal the Golden Rule
was established by Lord Sankey that the burden of proof lies with the prosecution to
prove the matter as against the accused and the appellant appeal was allowed on the
basis that the prosecution hadn’t proved the crime as against the defendant.
-In cases of alibi, the burden also remains with the prosecution to prove that indeed
that accused was at the scene of the crime. In the case of Uganda v Herman
Kakooza, the accused was interdicted for robbery contrary to the PCA and pleaded
the defence of alibi, and the burden was stated to be with the prosecution who failed to
show that the accused was at the crime of the scene and therefore hadn’t proved the
case beyond a reasonable doubt.
-When the prosecution makes out a prima facie case against the accused, the burden
to adduce shifts to the accused person. (S.102)
-Uganda v Dick Ojok, where Justice Ongom stated that in all criminal cases, the duty
of proving the guilt of the accused always lies on the prosecution and that duty doesn’t
shift to the accused except in a plea of a few statutory cases and standard is beyond
reasonable doubt.
-Exceptions to this rule are enshrined in S.105 of the Evidence Act; if an accused
brings any exception to which the knowledge of the fact is vested in him/her.
-S.103 states that the burden of proof lies on the person who wishes the court to
believe its existence unless the proof of fact shall lie on any particular person by law.
INTOXICATION
-S.12 PCA Intoxication shall be a defence to any criminal charge if by reason of the
intoxication the person charged at the time of the act or omission complained of did not
know that the act or omission was wrong or did not know what he or she was doing
and, the state of intoxication was caused without his or her consent by the malicious or
negligent act of another person; or the person charged was by reason of intoxication
insane, temporarily or otherwise, at the time of such act or omission.
-S.105 nothing shall affect the burden of proof placed upon an accused to prove the
defence of intoxication or insanity.
-Uganda v Iranya, The onus of proof about the reason of intoxication due to which the
accused had become incapable of having particular knowledge in forming the
particular intention is on the accused. It is only the accused who can give evidence as
to the amount of alcohol consumed and its effect upon him, once such evidence is
adduced, burden shifts to the prosecution to prove that the accused person was not so
drunk as to be capable of forming an intent to kill.
INSANITY.
-S.11, a person is not criminally responsible for an act if at the time of the act/omission,
if through any disease affecting his or her mind is incapable of understanding what he
or she is doing.
-According to rules established in R v McNaughten, every man is presumed to be
sane and to establish a case of insanity, it must be proved that at the time of the act,
the party accused under such disease of the mind couldn’t understand the nature of
the act he was doing and didn’t know what he was doing was wrong.
-In R v Kachinga, appellant killed his mother with two blows with an axe and a hoe
and it was argued that the appellant didn’t know what he was doing corroborated by
expert evidence stating he was weak minded and had a case of schizophrenia. The
trial court held that he hadn’t dispensed his burden to prove but on appeal it was held
that the standard wasn’t so high and had been dispensed.
STATUTORY EXCEPTIONS.
-S.59 Wildlife Act, anyone who kills an animal in the wild to prove they did so in self
defence.
-Under the mining act (S.68 (5)), no person shall buy or sell any minerals unless
he/she is a licensed dealer. (Accused will be required to prove that they are a licensed
dealer. And in the case of R v Tanner, it is not for the prosecutor to prove that there
was no lawful excuse, it is for the accused to show that indeed there was a lawful
excuse.
-S.70 and 71 of the Childrens Act requires anyone who alleges to have a parentage
over a child to prove so.
Burden of Proof in Civil Proceedings.
-S.102, he who asserts must prove on a balance of probabilities.
-In the case of Joseph Constantine v Imperial Smelting, it was held that the burden
in civil matter lies on the person that affirms and not the person who denies and
affirmation includes every allegation whether positive or negative.
-In instances of divorce and tax cases the burden lies with the petitioner and the tax
payer to prove that indeed grounds of divorce are met and that assessments are
excessive respectively.
-Wakling v London & South Western Railways, where a widow under the Fatal
Accidents Act alleged that her husband had met his death through the
Negligence of the defendants. The only evidence available was that the defendant’s
body was lying at the side of a railway line, near a crossing. She did not adduce further
evidence but invited court to say that it was due to the railway’s negligence. Court held
that the plaintiff could not succeed unless she brought further evidence to show that
her husband actually died at the hands of or through the negligence of the railway
authority.
-In Election Petitions, In Mbowa v Eliufoo (1967) EA 240 Georges, CJ in the
Tanzanian High Court said at page 241, “There has been much argument as to the
meaning of the term proved to the satisfaction of the Court.
In my view it is clear that the burden of proof must be on the Petitioner rather than the
Respondents because it is he who seeks to have this election declared void”
-In case of a custom, where a custom is alleged to exist, the one who alleges its
existence must prove them. In the case of
Kimani V Gikanga, court held that a custom should be proved by
Calling experts and people well acquainted with the custom
STANDARD OF PROOF.
-This is commonly known as the degree of persuasion and the law prescribes a certain
degree depending on the nature of the case to which one must attain to discharge the
burden of proof.
-In Criminal proceedings the general standard of proof is that of beyond a reasonable
doubt and not necessarily a shadow of a doubt. In Woolmington v DPP, Proof beyond
reasonable doubt generally means the Court must subject the entire evidence to such
scrutiny as to be satisfied beyond reasonable doubt that all the important elements
placed on the prosecution by the substantive law are proved. Â If Court is not satisfied
the accused person must be acquitted.
-And in Miller v Minister of Pensions, Lord Denning held Proof beyond reasonable
doubt does not mean proof beyond shadow of doubt. Â The law would fail to protect
the community if it admitted fanciful possibilities to deflect the course of justice if the
evidence is as strong against a man as to leave only a remote possibility in his
favor..... The case is proved beyond reasonable doubt but nothing short of that will
suffice.
-In Civil Matters, the standard of proof is that of a balance of probabilities. (Miller v
Minister of Pensions)
-The standard in matrimonial matters is that to the satisfaction of the court and the
definition of satisfaction of the court has been adduced to mean that which is above a
balance of probabilities but below beyond a reasonable doubt as matrimonial cases do
have effects that are both of a criminal and civil nature.
-In Veronica Habyarimana v Perfect Habyarimana, Court noted that the standard of
proof of adultery is well settled; where there is an allegation of adultery it must be
proved to the satisfaction of the court that while the evidence need not reach certainty,
nevertheless it must carry a high degree of probability.

JUDICIAL NOTICE
-General rule is that all facts in issue and any relevant facts must be proved in
evidence.
-Judicial notice is a rule in the law of evidence that allows a fact to be introduced into
evidence if the truth of that fact is so notorious or well known, or so authoritatively
attested, that it cannot reasonably be doubted.
-This was defined in Commonwealth Shipping Representative v P and O Branch
Services, Certain facts are beyond descript, or are so notorious or of such common
knowledge that there is no requirement for specific proof and they are not open
evidence in rebuttal.
-S.55, no fact of which the court takes judicial notice will be required to be proved. And
therefore once judicial notice is taken the fact is considered to be proved.
-And judicial notice has been taken in a number of instances. In the case of Woolf v
Woolf, judicial notice was taken that a man and a woman who share a bed are likely to
have sexual intercourse. And in Jones v Jones, judicial notice was taken to state that
the gestation of period of a normal human was 9 months and needn’t be proved.
-In UEB v GW Musoke, the learned judge took judicial notice of the fact that parents in
African Societies expect their children to look after them in old age.
-Judicial officer can consult sources, works of references, reports or from individuals
who have knowledge. But can’t take into matters on reliance of private personal
knowledge.
-Judicial notice in Uganda can be attributed in Legal Matters, Constitutional Matters
and Customary Matters.
-S.56, (a) court shall take judicial notice in all acts of the UK.
- (b) All statutory instruments, legislation or orders in council effective in Uganda.
Saleh Muhammad v R; the applicant was found in position of four sacks of sugar in a
certain place. The magistrate took judicial notice that the applicant was found with
sugar in a prohibited place.
-(c) course of proceedings of parliament and authorities in the making of laws
- (d) Accession and sign of the head of the commonwealth. (e) Seals of all the courts
of Uganda, accession to the office, title signatures of any person in a public office.
- (g) The existence, title and national flag of every state or sovereign recognized by the
government. In Duff Development Company vs Kelantan (Government), The
Kelantan government entered a contract with the plaintiffs granting rights of mining,
cutting, road timber and road making in the state, and it was held that all disputes
would be dealt with by arbitration. Disputes arose and the state body pled immunity
and it was held It’s a practice of courts when a question is raised relating to the rights
of a foreign government immunity from legal process in this country to take judicial
notice of the sovereignty of a state.
- (h) Division of time, geographical divisions, festivals, holidays notified in the gazette.
- (i) territories of the commonwealth, (j) termination of hostilities between the
government (k) identities of the officers of the court, (l) rule of the road, on land or at
sea.
-S.59(2) court may resort to appropriate books or documents, and in (3) if the court is
called upon by any person to take judicial notice of any fact, it may refuse to do so until
that person produces any such book or document as it may consider necessary to
enable it to do so.
-Sam Osingida v David Opolot, An NRA soldier during and independence
anniversary was denied attending the party because there was a regulation not
allowing soldiers to mix with civilians. He opened fire and killed the deceased and
injured others. Court took judicial notice of the fact that at the material time the area
around Bukedea center were under a state of insurgency caused by antigovernment
rebels and because of this, civilians were not supposed to coexist and drink with
soldiers.
-in Singh v R, appellant had been convicted on circumstantial evidence of the murder
of his wife by strangulation, on appeal he brought out passages and textbooks on
medical jurisprudence to try and expound on his matters to the court and the appeal
was allowed and it was held that The conclusion seems to be that books of reference
may be used by the court on matters (inter alia) of science to aid it in coming to a right
understanding of and conclusion upon the evidence given, while treatises may be
referred to in order to ascertain the opinions of experts who cannot be called, and the
grounds on which such opinions are held.
-In Bruno Kiwuwa v Ivan Serunkuma, the couple that intended to get married were
from the same clan and prohibited in culture and the defendants contested that they
were saved and not bound by that ideology, the court in executing in favor of the
plaintiff took judicial notice to state that there was a fusion of cultural and religious
celebration of marriages in Uganda. (Customary matters)
CUSTOMARY MATTERS.
-General customs may be taken judicial notice of and these vary from community to
community, however under the constitution must not be repugnant to natural Justice
and good conscience. In UEB V G.M Musoke, a child was electrocuted by the
negligent care of live wires by UEB, and initially judge had taken judicial notice to state
that it was tradition that children take care of their parents in old age, and had been
deprived of this however in the appeal it was overturned as the custom was held to be
nonexistent.
-In Kimani v Gikanga, it was held that where customarily law is neither notorious nor
documented it must be established for the court’s guidance by the party intending to
rely on it.
HISTORICAL MATTERS.
-S.56 (2) requires courts to take judicial notice by resorting to books or documents of
reference while addressing matters of public history. In the case of Hajji Muhammad
Bagalaaliwo v Attorney General, plaintiff claimed his inability to commence an action
in the prescribed time was due to the war, as much as it was notorious the war took
place, without reference to public history or documents courts couldn’t take judicial
notice.
PROFESSIONAL MATTERS
-This requires inquiry before judicial notice is taken. In Severino Twinobusingye v
AG, the court before taking judicial notice as to the Chief Justice’s salary first made an
inquiry of the judiciary salary scale before affirming it at 20 mill.
Reforms
-Parameters for notoriety.
-Judicial notice should be taken by courts without invitation.

ESTOPPEL.
-The word is derived from estoupail to mean to stop.
-It means that what one has alleged, either full words or deeds that person and he or
she shouldn’t contradict it.
-Nurdin Bandali v Lombank Tanganyika Limited. Estoppel, on the other hand, is
primarily a rule of evidence whereby a party to litigation is, in certain circumstances,
prevented from denying something which he had previously asserted to be true.
-S.114 When one person has, by his or her declaration, act or omission, intentionally
caused or permitted another person to believe a thing to be true and to act upon that
belief, neither he or she nor his or her representative shall be allowed, in any suit or
proceeding between himself or herself and that person or his or her representative, to
deny the truth of that thing.
-Estoppel is categorized into three main branches: Estoppel by record, deed, conduct.

Estoppel by Deed.
-Under this category, a party who has executed a deed or his privies is estopped from
denying the truth of the facts stated in the deed or in its recitals.
-This estoppel comes into play when the cause of action is founded or brought on the
deed itself and it can be rebutted if one is able to establish fraud, illegality, mistake.
-It is based on the principle that “if you sign or execute a deed, you’re bound by that
deed”
-In the case of Sanchoo and Another v Shamsa and another, the plaintiff was an
executor and sued the defendants on an alleged mortgage that was constituted in the
right format. The second defendant attempted to deny that the mortgage had been
made without his request. He was estopped from denying this fact as the recitals of the
mortgage clearly stipulated the request and therefore he couldn’t deny that fact.
-A person is bound by the recitals in a deed to which he is a party whenever they refer
to specific facts and are certain, precise and unambiguous. Since the second
defendant set his hand and seal to the deed, he was estopped from denying any
matter which he had specifically asserted therein.
-In the case of Income Tax Commissioner V AK, defendant was served notices of
assessment for the years of income, he didn’t dispute this assessment but through an
agent the accessory accepted late notice to reduce the amount in the assessment.
Defendant paid pursuant to the new agreement and the plaintiff attempted to renege
and recover from the original agreement claiming the agreement to be ultra vires. It
was held that the agreement wasn’t ultra vires and plaintiff was estopped from relying
on the original document. (Can use this case to show ultra vires and estoppel)

Estoppel by Conduct.
-This arises when the person by his words or conduct willfully causes another person
to believe in the existence of a certain state of things thereby inducing that person to
act on that belief or alter his/her position.
-The one whose action cause the alteration or the other party to act in that particular
way is estopped from pursuing a different position.
-The elements required to be proved in this type of estoppel were set out in the case of
Century Automobiles v Hutchingsbeer, a clear and unequivocal representation, an
intention that it should be acted upon, action upon it in belief of the truth.
-A person who is under the duty to do something may make a representation by not
doing that thing and will be estopped from claiming on the aspect that he didn’t do
what was owed of him. In the case of Greenwood v St. Martins Bank, the plaintiff’s
wife had fraudulently attained money from his account using fake checks which he
knew of but had never told the bank until she killed herself due to guilt, and the plaintiff
sued the bank for the amount he lost, and he was estopped from alleging the forgery
because as a customer of the bank he owed a duty to them.
-An aspect of this estoppel is estoppel by representation, and this is usually by a
party to an agreement and occurs where a person willfully represents a certain fact to
be true and is estopped from declining that fact. In the case of Nviri v British East
African Corporation and Rukiya, Rukiya had sold a plot of land to a partner who sold
it to the corporation and a suit was brought by the representative of Abubaker to state
that indeed Rukiya only owned 1/3 of the land sold and he owned the rest. However
Abubaker had enforced a contract with Devji and when Devji tried to enforce the
contract committed a fraud altering the title deed into Rukiya’s name and Devji
dropped the suit. The plaintiff and rep. For Abubaker was estopped from claiming the
land because he couldn’t go back on a willfully asserted fact.
-Estoppel by negligence. This is where one breaches a duty of care which cause
another person to believe in a certain set of facts and act on them and the negligent
person is estopped from denying in the fact. In the case of Coventry Shepherd v
Grant Eastern Railways, a servant of the railway company negligently issued two
delivery orders for one consignment of wheat and the two loans were procured on the
basis of that security and the company was estopped from denying the existence of
two consignments.

PROMISSORY ESTOPPEL
-Where a person makes an unambiguous representation as to his or her future
conduct with the intention it will be relied on by another party to affect legal relations
between them and that other person alter their position according to the
representation. In Central London Property Ltd v High Trees Ltd, During the World
War the landlord agreed with the tenants to only pay half of the rent and after the world
war went back to the original fee however attempted to recover the arrears from the
tenants for the years within the war, and he was estopped on the fact of his
representations to subsidize during the war.

NB: Estoppel cannot be set up to contradict substantive law. Therefore it is not

available if its purpose is to defeat or avoid the positive duty imposed by statute. In
Maritime Electric Co. Ltd v General Diaries Ltd, a public utility company sold current
to the respondent and as a mistake only billed a tenth of the money. The defendant
attempted to rely on estoppel to prevent the company from demanding the full amount
and it was held that estoppel couldn’t be relied upon when it would defeat the positive
duty that is imposed by statute.

Estoppel by Record
-Estoppel by record is largely based on the doctrine of Res Judicata. And this is by
judgment under the doctrine which means a matter has already been judged.
-S.7 of the Civil Procedure Act provides that no court shall try any suit which was the
same in a former suit between same parties which was heard and decided by a
competent court.
-And this estoppel mainly works to stop a person from bringing a suit which was
already decided. Illustrated in the case of Fernandes v People Newspaper, the
appellant had been awarded damages in the trial court and this appeal was constituted
to aver that the damages that were awarded in the trial suit were inadequate. Court
held that this amounted to Res Judicata, and court estopped from hearing the matter
on the basis that it had been duly finalized by a competent court.
-S.39 and 40 of the evidence act also justify the aspect of estoppel by record by stating
that the full judgement/order/decree of the court is conclusive proof that the legal
action came into operation.
-For a judgement to act as estoppel, the following need to be fulfilled;
1) Court must have jurisdiction. In R v Hutchings, it was held that judgement by a
court acting without or in excess jurisdiction can’t afford estoppel.
2) Judgement must be final. The aspect of finality was defined in the case of Nouvion
v Freeman, it was held that a judgement is final when it determines the rights of the
parties.
3)Judgement must be proper. There was no fraud involved. In the case of Kampala
Bottlers Limited v Damanico, the appeal of the applicant went through on the basis
that court couldn’t enforce fraud because it’s an illegality.

Types of Judgements
1) Judgements in rem: These decide the status of things against the whole world.
And these include judgements in matrimonial cases, Bankruptcy, Grants of Probate
2) Judgements in personam. These are between the two parties and affect only the
parties to a particular suit.
-They involve persons estopped and subject matter of the estoppel.
-Persons Estopped: Means that those parties to the litigation or anyone privy to the
judgement will be estopped from Re litigation.
-Strangers though to former proceedings won’t be estopped by the judgement. In
Townsend v Bishop, a father had sued on the facts of the son who was injured while
driving his car and judgement was made, the son sued on the same facts against the
same defendant and was held that the son was not estopped because he was a
stranger to the previous proceedings.
-Subject matter of estoppel; an estoppel by judgement can occur when the same
matter is litigated twice. (Rely on the Fernandes case above)