CHAPTER ONE:
INTRODUCTION TO EVIDENCE LAW
You should be familiar with the following areas
- Meaning Evidence Law
- Nature and scope of evidence law
- Historical Background of Evidence law
- Sources of Evidence Law
- Functions of evidence law
- Concepts of evidence
- Kinds of Evidence
1.1 MEANING OF EVIDENCE LAW
Therefore, Law of Evidence relates to the following items:
Law of Evidence according to Stephen is that part of the law of procedure which, with a view of ascertain individual rights and liabilities in particular cases, must establish the following:
He states that this part of the Law of Procedure can be found in judicial decisions, statute and Text-Books, among others.
1.2 NATURE AND SCOPE OF EVIDENCE LAW
The law of evidence forms part of procedural law as distinct from substantive law. It regulates what type of information can be received by a court in order to assist the decision maker (judge or juror) to decide a matter in issue in a case, it concerned with distinguishing admissible information
1.3 HISTORICAL BACKGROUND OF EVIDENCE LAW
The Tanzania Evidence Act together with evidence Act of two East Africa Countries Kenya and Uganda in closed on the Indian Evidence Act of 1872 which in time was based on English common law evidence. There are however a few difference between the English common law of evidence and Indian Act and the East Africa Countries Acts. 1897 the East Africa are in promulgated and they provide that the High Court in these countries should exercise jurisdiction in conformity with certain Indian evidence on of which Indian Evidence Act.
1907, east Africa protectorate applied acts ordinance with passed prove that any evidence or subtitle to the Indian evidence applies in the protectorate of they even passed before the passing of the East Africa protectorate applied Acts.
In 1917 Tanzania evidence Decree was evidence replacing the Indian evidence Act, by 1920 the Tanganyika Indian (Application) applied the Indian evidence Act is stand date of territory.
In 1967 the Tanganyika Evidence Act No.6 of 1907 was enacted replacing the application of the Indian evidence Act in Tanganyika. On the same year, TEA applies to all judicial proceeding before the Magistrate Courts in Tanganyika but does not apply to primary courts or to affidavit presented to any court or to affected presented to the court or offence of the court or to processing before an arbitral. By 2002 the Law Revision Act, Revised Evidence Act, now is cited as The Tanzania Evidence Act Cap. 6 R.E 2002.
1.4 SOURCES OF LAW OF EVIDENCE LAW
(a) Statutes/ Legislations
- The Evidence Act, Cap.6 RE 2002 in Tanzania Mainland and Zanzibar Evidence Decree in Zanzibar.
- The Economic and Organized Crimes Control Act, Cap. 200 R.E 2002
- The Wildlife Conservation Act, Cap. 283 R.E 2002
- The Criminal Procedure Act, Cap. 20 R.E 2002
(c) Case laws
The cases that have been decided by the High Court and Court of Appeal which established various principles on contract law are also sources of contract law. The reported (Law Reports) and unreported cases of said courts binding subordinate courts.
- Customary Laws
The customary law will apply to customary contracts. Customary laws in Tanzania are applicable by virtue of section 11of the Judicature and Application of Laws Act (JALA) Cap 358 R.E 2002, which is to the effect that customary law shall be applicable to, and courts shall exercise jurisdiction in accordance therewith in, matters of the civil nature.
- Common law
The substance of the Contract Act occasions a number of lacunas on some aspects of contract law i.e it means it does not provide for any principles for some of the matters relating to contracts and when this happens the applicable law would be the common law of England on contracts.
1.5 FUNCTIONS OF EVIDENCE LAW
As the law of evidence is concerned with the regulation of proof of facts in judicial proceedings, its functions are best expressed within the framework of adjudication. The substantive rights of the parties require adjudication on the basis of the correct application of the law to the true facts.
The main purpose of the law of evidence is to promote the accuracy of legal fact finding so as to ensure that courts reach the right decision when there are disputes about what happened.
First, it is generally accepted that fact-finding should be rational.
Secondly, relevant evidence should be available to the court. The fact-finder should have access to all information that is capable of supporting rational reasoning about the facts at issue in the proceedings. This requirement underlies the fundamental rule of the law of evidence that relevant evidence should be admitted.
Thirdly, evidence should be presented in a form which is designed to bring out truth and discover untruth. As a rule is only witnesses who have personal knowledge of the matter and people involved in a legal dispute are brought in to testify their observations. In order to ensure that witnesses state the truth, they are required to take an oath. Cross-examination is further designed to probe the accuracy of their statements.
Fourthly, the appropriate burdens and standard of proof should be clearly defined. In practice, it is impossible for a legal system to ascertain the whole truth of the facts in every case. There are a variety of constraints on the reception of evidence in courts.
First, under the English adversarial system of trial, the court itself cannot undertake a search for relevant evidence but must reach its decision solely on the basis of such evidence as presented by the parties.
There are other countervailing considerations of public policy which restrict the reception of evidence. There are considerations of time and cost and the need for finality to litigation. These considerations mainly account for development of exclusionary rules of relevant evidence. Evidence may be excluded in order to preserve the integrity of the judicial processes. Because of the limitations based on time, personnel and capacity to process information there are several rules of evidence which limit the receptions of evidence on some matters. Those rules regulate the examination of witnesses and receptions of hearsay evidence to mention but two
Furthermore, there is often tension between the pursuit of truth and the pursuit of justice. The rules of evidence do not allow the reception of all relevant evidence in some cases even if such evidence might facilitate accurate fact-finding. This tension has led to the development of the legitimacy principle in the law of evidence. Legitimacy principle is based on the idea that evidence should not be admitted if doing so might undermine the integrity and legitimacy on the administration of justice. The rules developed under this heading limit the reception of confessional statements and evidence illegally obtained.
The protection of other public interests is another function of the law of evidence. One established area where other public interests do sometimes override the goal of accurate fact-finding is when it is in the public interest to maintain the confidentiality or secrecy of a particular type of item or information. As a result, there are other functions of the law of evidence apart from ensuring the accuracy of fact-finding.
1.6 CONCEPTS OF EVIDENCE
According to Black’s Law Dictionary 8th Edition pg. 595 defines evidence as something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact. Also Oxford Advanced Dictionary defines “evidence” to mean information that gives a strong reason for something or prove something. Evidence is the foundation of proof. It is acceptance of the statements or things presented by a person testifying in establishing the existence of certain facts by the court that occasions a proven fact.
The legal author, Aguda suggests that Evidence is the means by which facts are proved but excluding inferences and arguments. Taylor defines evidence as “All legal means exclusive of mere argument, which tend to prove or disprove any matter of fact; the truth of which is submitted to judicial investigations”. In his own definition of evidence Mckelvey States: “Evidence is any matter of fact from which an inference may be drawn as to another matter of fact: the former fact is called the evidential fact; the latter, the ultimate, main or principal”. Best also defines evidence as “any matter of fact, the effect, tendency or design of which is, to produce in the mind persuasion, affirmative or dis-affirmative, of the existence, of some other matter of facts”.
Section 3 of Tanzania Evidence Act Cap.6 R.E 2002 provides that evidence denotes the means by which an alleged matter of facts, the truth of which is submitted to investigation, is proved or disproved; and includes statements and admissions by the accused person.
1.7 KINDS/TYPES OF EVIDENCE
- Oral Evidence/Testimonial
- Hearsay evidence
- Circumstantial evidence
- Documentary evidence
- Corroborative evidence
- Evidence of expert
- Evidence of Character
- Real evidence
1.7.1 Oral Evidence/Testimonial
Oral evidence refers to all statements which the court allows to be made before it by a witness in relation to matters under inquiry. Testimonial evidence refers to the evidence of a witness that is usually given on oath. The term includes both oral evidence given in court and the written testimony of a witness given in the form of an affidavit. Section 61 of the Evidence Act, requires that all facts, except the contents of documents, may be proves by oral evidence.
1.7.2 Hearsay Evidence
Is type of evidence given by a witness who heard from another person says. Hearsay evidence falls under the category of parole evidence. The general rule against hearsay is that a statement made by a person, not called as a witness, which is offered in evidence to prove the truth of the facts contained in the statement is hearsay and is no admissible. If the statement is however offered in evidence to prove that it was in fact made, and not to prove the facts contained therein, it is admissible.
1.7.3 Circumstantial evidence
Is that evidence fact not actually in issue, but it is legally relevant to the fact in issue the circumstance from which the conduct of guilty is to drawn against the accused. It require court not only accept the evidence but to also drawn inference or conduct from it
1.7.4 Documentary Evidence
Refers to all documents produced as evidence before the court. The meaning of the word ‘document’ has no single definition in the law of evidence. A document has been defined as ‘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 sight.
1.7.5 Corroborative Evidence
Is independent evidence which tends to confirm or support an evidence which has been given a court. The court cannot committed an accused power by relying upon the evidence of a single witness have these may be evidence or mere the one witness.
For example: The offence of pursuing as provided unit section 102 and 105 of the Penal Code.
1.7.6 Expert Evidence
Is testimony given by those qualified people to speak with authority regarding scientific technical, or professional matters. When an expert is before the court he must state his back of his education.
1.7.7 Real Evidence/ Material/physical
Refers to evidence of material objects produce in court for inspiration. Example object, a tape recording, a computer printout or photograph. It evidence that the court can examine for itself.
1.7.8 Prima Facie Evidence
Is evidence which is declared usually by statute to be sufficient evidence of an fact when, until a appoint adduce evidence to the country in which can be measure the weight of all the evidence tendered before reach decision.
1.7.9 Direct Evidence
Is evidence of facts where a witnesses perceive using any of her senses. It supports the truth of an assertion directly without an intervening inference. For example a witness who testifies that they saw the defendant shoot the victim gives direct evidence. t”wp� ��