Documentary Evidence in Tanzania PDF

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DOCUMENTARY EVIDENCE IN TANZANIA © 2014 MAJURA Ibrahim W LL. University of Dodoma 1.0 Meaning of Document and Documentary Evidence Document means any writing, handwriting, typewriting, printing, photostat, photograph and every recording upon any tangible thing, any form of communication or represent...

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DOCUMENTARY EVIDENCE IN TANZANIA

© 2014 MAJURA Ibrahim W LL.B. University of Dodoma

1.0.0 Meaning of Document and Documentary Evidence Document means any writing, handwriting, typewriting, printing, photostat, photograph and every recording upon any tangible thing, any form of communication or representation by letters, figures, marks or symbols or by more than one of these means, which may be used for the purpose of recording any matter provided that such recording is reasonably permanent and readable by sight1As long ago as 1908 one English Judge named Darling defined the term “document” to mean, “…any written thing or printing capable of being evidence is properly described as a document and …it is immaterial on what material the writing may be inscribed. It might be inscribed on paper, as is the common case now; but the common case once was that it was not on paper, but on parchment; and long before that it was on stone, marble, or clay and it might be, and often was on metal.”2 There is no doubt that the definition of the word document nowadays has much wider scope than what is said in Daye’s case above. There is no question that the current meanings of the term document covers a disc, tape, photostat or film and conveys information by symbols, diagrams and pictures as well as by words and numbers. That is why it is concluded that the definition derived from the Act acquire the best status than what was held in Day’s case above. Documentary Evidence is all documents produced as evidence before the court3 1.2.0 Classifications of Document Documents are classified in two major categories according to the Evidence Act, Cap. 6 [R.E 2002]as shown as here under:1

Section 3 of the Evidence Act, Cap. 6 [R. E 2002] R.V. Daye [1908] 2 KB 333. 3 Section 3 of the Evidence Act, Cap. 6 [R. E 2002] 2

(i)

public documents according to section 83

(ii)

private documents according to section 84

1.2.1Public Documents The term public document was defined in the case of Sturia v. Freccia4as “a document that is made for the purpose of the public making use of it and being able to refer to it. It is meant to be where there is a judicial or quasi-judicial duty to enquire.” The test of publicity is that the public is interested in it and entitled to see it so that if there is anything wrong in it they would be entitled to protest. In that sense it becomes a statement that could be open to the public to challenge or dispute and therefore it has a certain amount of authority. A document prepared by a public official acting pursuant to a legal duty to prepare and keep the same as a record or register for the public to use and refer to is admissible to prove the truth of its contents, save that if the official himself did not have a personal knowledge of the information recorded (or did not inquire into the accuracy of the information pursuant to a legal duty to satisfy himself of its truth), the person providing it must have had such knowledge and been acting under a legal duty to provide it . Therefore, as per section 83 of the Evidence Act of Tanzania the following documents are public documents:i)

documents forming the acts or records of the acts of the President of the United Republic;

ii)

4

documents forming the acts or records of the acts of official bodies and tribunals; and

(1880) 5 A.C. 623 at p.541

iii)

documents forming the acts or records of the acts of public officers, legislative, judicial and executive. This is per Section 83 (a)(i-iii) respectively. And also include public records kept in the United Republic of private documents, this is under Section 83 (b)5 .

1.2.1.1 How are public documents proved in evidence? As a general rule a party relying on the words used in a document for any purpose other than identifying it, must adduce original primary evidence of its contents, that is, the original primary evidence of its contents, that is, the original document must be produced. However, in some public documents the usual method of proof is by producing certified copy, that is, secondary evidence or in certain instances by authentication and the contents being evidence of facts stated in it, this is provided for under Section 86 . Under Section 85 (1), a public officer having custody of a public document which “any person has the right to inspect” mat issue a copy of such document together with a certificate written at the foot of such copy that it sis the copy of such document or part thereof, and where the law requires seal the same. 1.2.1.2Proof of other official documents Acts, orders or notifications of the Government of the United Republic, the Executive for Zanzibar, or any local government authority or of a Ministry of department of any of them by the records of the service, authority, Ministry, or department certified by the head thereof or by any

5

The Evidence Act, Cap. 6, [ R. E 2002]

document purporting to be printed or published by order of the Government or other body concerned6. The proceedings of the legislatures in the United Republic, by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed by order of Government7. Proclamations, orders or regulations issued by the President of the United Republic or of Zanzibar or by any their departments, by copies or extracts contained in the Gazette or purporting to be printed by the Government Printer8. The acts of the executive or the proceedings of the legislature of a foreign country, by journals published by their authority or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign or by recognition thereof in some written law9. Proceedings of a municipal body in the United Republic, by a copy of such proceedings certified by the legal keeper thereof or by a printed book purporting to be published by the authority of such body 10. Public documents of any other class in a foreign country, by the original or by a copy certified by the legal keeper thereof, with a certificate under the seal of a foreign service officer or diplomatic representative of a Commonwealth country that the copy is duly certified by the officer having

6

Section 87 (a) of the Evidence Act, Cap. 6, [R. E 2002] Ibid. Section 87 (b) 8 Ibid. Section 87 (c) 9 Ibid. Section 87 (d) 10 Ibid. Section 87 (e) 7

the legal custody of the original, and upon proof of the character of the documents according to the law of the foreign country11. The issue of public document was considered in the case of Manji Suleiman Ladha and others v. R.G Patel & Others12 , in this case counsel for one of the defendants sought to introduce as evidence a report of an inspector of vehicles made on Police Form 93 as a “Public or other official book, register or record” under S.35 of the Indian Evidence Act. Its admissibility was the issue to be questioned. It was held that, to be a public record, a record must be intended for the use of the public or a section of the public, or be available for public inspection, intended to be a permanent record and substantially a record of facts (emphasize supplied). The report of the inspector of vehicles on Police Form 93 was not a “Public or other official book, register or record” .It is the above reasoning that led the court to hold that a Vehicle Inspection Report on Police Form 93 is not a “public or other official book, register or record” for purposes of s. 35 of the Evidence Act. Also the court had this observation on the case ofShirinJessa v. AlipioZorillan13that, for a document to be proved in the manner provided for in Sections 83-86 of the Tanzania Evidence Act that is by producing a certified copy, it must: (i)

be a public document; and

(ii)

be of such a character that any person has the right to inspect and raise protest if any.

11

Ibid. Section 87 (f) [1960] 1 EA 38 (HCT) 13 [1973] LRT No.84 12

1.2.2 Private Documents Section 84 of the Tanzania Evidence Act provides that all documents other than public documents are private. That means all documents beside those mentioned in Section 83 are private documents. As a general rule private documents must be proved by production of original primary evidence.This is according to the ‘best evidence’ rule that is based on a very old presumption that if inferior evidence is produced where better might be given this would operate against the withholder. The only exceptions to this are cases mentioned in section 66 and 67 of the Tanzania Evidence Act. It must be emphasized that before a document is tendered in court it must be proved to be genuine and a party tendering it must offer best evidence of the document which is primary evidence. The issue of genuineness is very important. Mere production of a signed document is not evidence of genuineness. On this ground before a document is relied on as evidence the source and history of the document must be carefully ascertained asD. Hussein V R14 where it was held that, “…writing can be received in evidence as a genuine writing until it has been shown to be genuine unless there is a specific presumption on the same”. Apart from this, there are certain documents such as wills, mortgages etc., which are required by law to be attested. The word to “attest” means to witness any act or event for example the signature or execution of a document. Where a document is required by law to be attested section 70 of the Evidence Act demands that at least one attesting witness should give evidence in regard to the document. If the attesting

14

[1975] LRT n. 45.

witness denies or does not recollect the execution of the document, its execution may be proved by other evidence15. If the witness is not available or is not subject to the process of the court it must be proved that the attestation of, at least, one attesting witness is in his/her handwriting and that the signature of the person executing the document is in his/her handwriting16. However, an attested document not required by law to be attested may be proved as if it were not attested17. The general rule/principle found in section 70 of the Evidence Act is that all documents required by law to be attested must be proved as having been duly executed. This principle has a number of exceptions. That means there are situations, for documents required by law to be attested, where proof of execution may be dispensed with differentsituation as provided for under sections 72, 98,99 and 123 respectively as follows:i)

When the executing party admits execution for the purpose of the trial ;

ii)

When the document is in the possession of the adverse party who refuses to produce it after notice ;

iii)

When the document is 20 years old;

iv)

When one party, by his/her prior conduct is stopped from denying execution; and

v)

When the opposite party produces the document and claims interest in it – in such a case genuineness of the document is implied.

15

Section 73,the Evidence Act, Cap. 6, [R. E 2002] Ibid. section 71 17 Ibid. section 74 16

In the case of Kanti Printing Works v. Tanga District Council18, the plaintiffs Kanti Printing Works sued the Njombe District Council for goods sold and supplied. The Local Government Ordinance (Cap. 333) requires that summons and other authorized documents be served on the Chairman or the Clerk to the local authority being sued. The plaintiffs served the summons on an Executive Officer of the defendant Council which the defendant argued, was irregular. The defendants also argued that by virtue of section 153 (1) of the Local Government Ordinance a suit commenced against a local authority for an act done in pursuance or execution of an Ordinance or of any public duties or authority had to be commenced within twelve months of the act done in pursuance or execution of an Ordinance or of any public duties or authority had to be commenced within twelve months of the act and therefore because plaintiffs’ action was brought twelve months after the cause of action had arisen, the suit was barred by limitation. The judge said“I am satisfied that an Executive officer would be equivalent to a clerk of an authority, and I hold the summons was properly served on the District Council. Similarly, I am satisfied that the notice complied with the statutory requirements as mentioned in section 152 of Cap. 333. In paragraph 7 of the plaint, the plaintiffs have alleged that they have only served notice on the defendants demanding payment, and,is my view, that was specifically pleading service of the statutory notice, if such specific pleading is at all necessary.” Therefore it will now deal with the issue as to whether the suitwas barred by limitation. Mr. Patel refers to section 153 of Cap. 333. it is not in disputethat among the functions and duties of the Njombe District Council are: (1) to build, equip, maintain or manage schools and educational institutions; and (2) to grant sumsof money towards the establishment equipment or maintenance of schools andeducational

18

(1970) HCD 253

institutions. These are some of the functions of a local government authority, as mentioned in section 52 of Cap. 333, and by Government Notice No. 251 of 1962, as amended by Government Notice No. 379 of 1966, the above two duties (among others) were to be performed by the Njombe District Council. It has, therefore, been argued that since the debt was incurred by the Njombe District Council for the purchase of educational exercise books or articles of a similar nature, the defendants in so doing were carrying out as not done in pursuance or execution or intended execution of an Ordinance or of any public duties or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, duty or authority, and therefore this suit by the plaintiffs against the Council is governed by the provisions of section 153 of the Ordinance, and the period of limitation prescribed, therefore, is twelve months, and not the usual three years for a contract for goods sold and supplied. In my view, the wording of section 153(1) would require careful scrutiny. It seems the wording is very similar to section 1 of the Public Authorities Protection Act, 1893, in England. 2.0.0 Proof of contents of a Document This can be done through primary or secondary evidence. For a public document, you could use either primary or secondary evidence whereas the contents of a private document can only be proved by primary evidence except where Section 68 allows use of secondary Evidence19.This was held in case of Saumu Mohamed Kassim v. Mohamed Haji Dau20,this is an appeal case, in which the appelant (Saumu) who is the former wife of respondent claiming for a share of fifty percent in a house which the two had jointly in building, hence the parties made equal

19

Evidence Act, Cap. 6, [R. E 2002] (1993) TLR 368

20

contribution on the building of house. In supporting of her plaint she annexed a document which was made and signed by the parties embodying the contract between them. But the document was not registered as required by section 4(1) of the Registration of Documents Decree D Cap. 99 of the Laws of Zanzibar. The respondent admitted joint ownership of the house. The Court considered whether in the circumstances it could look at the otherwise inadmissible document. Therefore, the Judges of the Court of Appeal of Tanzania held that, where a right in immovable property is indisputably established between the parties, a document which is otherwise inadmissible to prove the existence of such a right may be looked at by the court for purposes of clarification of the established right. Therefore, the court added that, in the light of documentary evidence adduced we are satisfied and find as a fact that each party is entitled to half share of the house at Kidongochekundu. The same position also shown in the case of Sarjit Singh v.Sebastian Christian21,in this case the appellant (Sarjit Singh) was offered a right of occupancy over Plot A No. 978 Msasani Peninsula, Dar es Salaam by the Kinondoni District Land Office. Then after some period of time his right of occupancy was revoked by the District Land Development Officer, and offered it to the respondent (Sebastian Christom) who was finally issued a certificate of occupancy for the plot. In the trial the letter of revocation was produced as the evidence. Hence, the appellant is appealing to the High Court after being dissatisfied by the judgment and decree of the Resident Magistrate's Court. Whereby the High court came with the conclusion that, the revocation by the District Land Officer was of no effect due to the fact that, the revocation was made by someone who had no power to revoke titles as provided for under section 10 the Land Ordinance (Cap. 113).

21

(1988) TLR 24

2.1.0 Primary evidence It is the document produced in court for court inspection and perusal. Also primary evidence could be in the instance where a document is executed in several parts then each part is going to be primary evidence of the document and this contemplates a situation where you have a tenancy and landlord and both their parts are essential for an agreement. Where a document has been executed in counterpart and some of the parties have only signed the counterpart each counterpart is primary evidence against the parties executing it. An example is a letter of offer of employment in which the employer signs the copies of document and when you receive you are supposed to sign them and keep them. When documents are formed by one uniform process each is a primary evidence of the other. For example when you buy books or newspapers, you cannot say that one is more authoritative than the other each will be primary evidence22. 2.2.0 Secondary evidence Secondary evidence is evidence that has been reproduced from an original document. For example, a photocopy of a document or photograph would be considered secondary evidence. Such evidence is admissible out of necessity, because of the impossibility of producing the primary evidence. For instance, when an instrument pertinent to a case has been lost or destroyed without fault on the part of the party, a true copy or oral evidence of the content is admissible. Section 65 gives example of secondary evidence. Secondary evidence is permissible when; i.

The original is in possession or power of the adverse party,

ii.

It is in possession of a person outside the court’s jurisdiction

22

Ibid

iii.

When in possession of a person who is immune from the courts process, or any person

not legally bound to produce the document23. In the case of Edward Mwakamela v. R24 which was an appellate case at the High court of Tanzania at Mbeya whereas the appellant brought the matter after being aggrieved with the judgment at the District court in Iringa. At first instance the appellant was charged with atotal of twenty five (25) counts; two magistrates had tried the case and the succeeding magistrate had informed the appellant of his right under S.214 of the Criminal Procedure Act of 1985. The appellant opted to have two witnesses summoned however, in writing his judgment the succeeding magistrate relied more on the evidence brought before the first magistrate and convicted of twenty (20) out of twenty five (25) counts hence appeal. On appeal, Mroso J. held that for secondary evidence to be admissible it must satisfy provisions of S.67 of Evidence Act on the admissibility of secondary evidence. He continued saying that, there were no bank pay slips to prove that fodgery or theft of 11,088/= had been actually done by the appellant. Also he added on to that by stating the trial conduct by first magis...