KAMPALA INTERNATIONAL UNIVERSITY

SCHOOL OF LAWS
COURSE UNIT : LAW OF EVIDENCE II
COURSE CODE : LLB2204
YEAR : TWO
SEMESTER : TWO
LECTURER : MR. KAJJA TIMOTHY
GROUP 3 MEMBERS
NO. NAME REG. NO. SIGNATURE
1. NINSIIMA RACHEAL 2024-04-25139
2. MUKUNDE ESTHER 2024-04-26291
3. ATUHAIRE MARION 2024-04-26120
4. KITANDWE STANELY 2024-04-26083
5. NAJJALA ESTHER 2024-04-26066
6. BYAMUGISHA TIMOTHY 2024-04-26504
7. GUMA GIVEN EDWINE 2024-04-26506
8. KABOGGOZA STEVEN ROGERS 2024-04-26367
9. KYATUHEIRE ANITAH 2024-04-26212
10. AGUTI ROSELINE 2024-04-26482

Question
DOCUMENTARY EVIDENCE
This involves the principles and rules that govern the admission of documents in evidence.
These are mostly contained in ss. 59-99 Evidence Act. We shall look at:
i. Classification of documents;
ii. Proof of execution/ genuineness of a document;
iii. Rules of proving contents of documents;
iv. Presumptions relating to documents;
v. Admissibility of extrinsic evidence to prove the contents of a document (parole evidence
rule and exceptions).
What is a document?
S.2 (1) of the Evidence Act defines a document as any matter expressed or described upon
any substance by means of letters, figures or marks or by more than one of those means,
intended to be used or which may be used for the purpose of recording that matter.
Documentary evidence means all documents produced for the inspection of court. Today,
tombstones, signposts, buildings, tape recordings are also referred to as documents.
According to the Tanzanian Evidence Act, a document is defined as any handwriting,
typewriting, printing, Photostat, any and every recording upon any tangible thing, any form
of communication or representation by one of those means which may be used for the
purpose of recording any matter, provided that such recording is reasonably permanent and
readable by sight.
Thus, in our law, the term ‗document‘ means a lot more than its ordinary meaning e.g. it
includes signposts, tombstones, photographs and tape recordings. In Salau Dean v R, tape
recordings were considered documents.
R v Maksud Ali
Facts: A murder was discovered on 27th April 1964. The two appellants voluntarily went to
the town hall on 29th April 1964 in the company of a police superintendent and a Pakistani
liason officer. Unknown to them, a microphone had been installed behind a waste paper
basket in the room and it was connected to a tape recorder in another room. The police
superintendent and the liason officer left the room and the recorder was connected to the tape
recorder was stitched on. The appellants engaged in a conversation which was recorded on
the tape, but it was found as a fact at the hearing when the prosecution sought to produce the
tape as evidence.

Issue: Whether or not a tape recorder could be admissible as documentary evidence?

Argument: Although throughout, the tape was in custody of police, it was imperfect since in
addition to the appellants‘ voices, street noises were also recorded. Not all that the appellants
said was distinguishable. An attempt was made to prepare translations to the police, but it
was difficult to do as the dialects used by the appellants was limited to only a particular area
of Pakistan, the same words could have different meaning depending on the context, and
before translation into English, the recorded words had to be converted into Urdu which was
the official Pakistani language. It was argued that the tape recording was of vital importance
since it contained matters tantamount almost to a confession. This tape was played to the
appellants before trial and they were offered a chance to have their own witnesses translate it.
Held: Evidence of the tape recording was in the circumstances admissible. The trial judge,
having properly warned the jury of the caution with which they should consider the
translations which were properly put before the jury, the recorder was in substance, a
mechanical eavesdropper therefore the recording was indifferent and the judge had a right to
exercise his discretion by not excluding the evidence of the tape and the translators. Court
laid out the following principles:
A tape recording is admissible in evidence, provided the accuracy of the recording can be
proved and the voices recorded can be properly identified before the evidence is relevant and
otherwise

A sovereign authority e.g. president;

Official bodies and tribunals e.g. URA, Court proceedings;
Public officers, legislature, judiciary and the executive of whether of Uganda or any other
part of the common wealth of the republic of Ireland or of a foreign country.
Public documents are also public records of private documents kept in Uganda.
Kafeero v Turyagenda
Facts: There was an agreement which was registered after 7 years.
Held: A document once registered becomes a public document. This makes it easier to prove
the authenticity of that document. One may register a document at any point. If the parties do
not register their private documents, it does not render the document void and there is no time
within which registration must be done.
The two classifications are not mutually exclusive.
See: Khaled Walusimbi v Jamil Kaaya
Uganda v Mukasa Deogratius

Private Documents
S. 74- All documents that are not specified in s.73
See: Tootal Bodhurst Co. v Ahmed on how to distinguish between a private and public
document.
The significance of this classification centres around the rules governing the admissibility of
the different documents e.g. with a public document, you may tender a certified copy thereof
and the court will act on it. However, with a private company document, court usually insists
on the original.

Primary and secondary documents/ evidence

S.60 – The contents of a document may be proved by either primary or secondary evidence.
S.61 defines primary evidence of a document to mean the document itself produced for the
inspection of the court, i.e. primary evidence is the original document itself and the section
makes a number of explanations as to the two types:
1. Where a document is executed in several parts, each part is primary evidence of the
document. Where a document is executed in counterpart, each counterpart being executed by
one or some of the parties only, each counterpart is primary evidence as against the parties
executing it.
2. Where a number of documents are all made by one uniform process, as in the case of
printing, lithography or photography, each is primary evidence of the contents of the rest; but
where they are all copies of a common original, they are not primary evidence of the contents
of the original. (e.g. sub agreements towards a main transaction/ agreement e.g. an agreement
between Uganda and Japan to set up lights in Wandegeya, that is primary evidence, but if
Uganda signs with KCC, that is secondary evidence)
3. Where a number of documents are all made by one uniform process e.g. in the case of
printing lithography and photography, each is primary evidence of the contents of the rest,
but where they are all copies of a common original, they are not primary evidence of the
contents of the original.
DPP v Nathani
Facts: Nathani had been accused and convicted of fraud. He had a licence to sell air tickets to
the East African Airways in Zanzibar. He was alleged to have forged air tickets in mainland
Tanzania where he had no licence to sell them. The evidence adduced by prosecution
consisted of an official agency list for the IATA, which list was contained in a loose leaf,
cyclostyled volume which indicated all agents authorised to sell tickets in Africa. The
appellant challenged the administration of this loose leaf cyclostyled volume claiming that it
was secondary evidence and that no circumstances had been shown, which warranted its
admission.
Held: The official agency list was primary evidence since it was one of a number of
documents made by one uniform process, capable of producing many others.
Secondary Evidence s. 62
This means and includes:
i. certified copies given under the provisions hereafter contained;
ii. copies made from the original by mechanical processes which in themselves ensure the
accuracy of the copy, and copies compared with those copies
iii. copies made from or compared with the original; (e.g. writing out a copy of the Evidence
Act or typing
iv. counterparts of documents as against the parties who did not execute them
v. oral accounts of the contents of a document given by some person who has himself or
herself seen it.

PROOF OF EXCUTION OF DOCUMENTS

General rule: S. 63- Documents must be proved by primary evidence except in cases
mentioned hereafter.
Primary evidence- s.61 - Primary evidence means the document itself produced for the
inspection of the court.
The aspect of proof of execution otherwise called proof of genuineness is important because
before a document is admitted in evidence, it must be proved to court that it is a genuine
document, i.e. it must be shown that it was duly executed by the person(s) who appears on the
face of the document as the signatories. This principle was laid down in:
Stamper v Griffen
Held: ―No writing can be received in evidence as a genuine writing until it has been proved
to be a genuine writing and none, as a forgery, until it has been proved to be a forgery, that a
writing, of itself, is not evidence of the one thing or the other; a writing of itself is evidence
of nothing and therefore is not, unless accompanied by proof of some sort, admissible as
evidence.

How can genuineness of a document be proved?

Proof of public documents
Generally, court admits or tenders in a certified copy in proof of such document and its
contents.
S. 75 grants a right to every person to access public records and to get certified copies
thereof. It says that every public officer, having the custody of the public document which
any person has the right to inspect, shall give that person, on demand, a copy of it upon
payment of the legal fees therefore, together with a certificate written at the foot of such
document. Such certificate shall be dated and subscribed by such officer, with his name and
official title. If it requires to be sealed, it shall be sealed and thereafter, it is called a certified
copy.
There are a number of presumptions, but s.76 provides that such certified copies as provided
for in s.75 may be produced in proof of the contents of public documents of which they
purport to be copies.
S.77 has specific methods for the proof of specific public documents. There is a presumption
under s.78 that the court shall presume every document purporting to be a certificate, certified
copy or other copy, which purports to be duly certified by any officer in Uganda, to be
genuine. This, however, is a rebuttable presumption, which is why there is a proviso to s.78:
provided that such document is substantially in the form and purports to be executed in the
manner directed by law.
Also, under s.78, the court shall presume that the officer by whom any such document,
purports to be signed or certified held, when he signed it, the official character which claims
in such paper. (Fraud, forgery, etc may be adduced to overturn the presumption.)
Proof of private documents
Private documents required by law to be attested
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. The
reason behind attestation is to protect the weaker party, as a general rule.
Exceptions:
S.68 provides that if no such attesting witness can be found, it must be proved that the
attestation of at least one attesting witness is in his handwriting and that the signature of the
person executing the document is in the handwriting of that person;
How is handwriting proven? See s.43; s.45; Salau Dean v R; Walusimbi v Standard Bank
S.69- where there is an admission of a party to an attested document that he himself executed
the document, then that document shall be sufficient proof of the execution against him;
S.70- If the attesting witness denies or does not recollect the execution of the document, then
other evidence may be called to prove the genuineness of that document.
Some of the evidence or methods that may be used to prove execution are: Under s.90, which
has been referred to as the 30 year-old rule. The section creates a presumption that the
documents purporting or proved to be 30 years old, if produced from custody that the court
considers proper for the particular case, then the court may presume that the signature and
every other part of that document, which purports to be in the handwriting of any other
person, is in that person‘s handwriting and if it is an attested by the persons by whom it
purports to be executed and attested.
Evidence by estoppel – If the person against whom the document is sought to be adduced
has be prior conduct, relied on that document, then he is stopped from denying its
genuineness.

2. Documents which do not require to be attested

S.71- An attested document not required by law to be attested may be proved as if it were
unattested. Thus, it would be proved under s.66 which provides that if a document is alleged
to be signed or to have been written wholly or in part, by any person, the signature or the
handwriting of the document which is alleged to be in that person‘s handwriting must be
proved to be in his handwriting. (See ss.44 & 45)
S.72, for this purpose, gives court, power to compel any person to provide a sample of his
handwriting for purposes of comparison.
Rules for proof of contents of documents
General rule: Documents must be proved by primary evidence, i.e. anyone who wishes to
rely on a document must produce and exhibit the original document in court. See s.63
Rationale and historical background of general rule
It has been argued by many authors that the rationale for the rule that documents must be
proved by primary evidence is based on the best evidence rule. According to Phipson on
evidence, the rule states that the best evidence which the nature of the case permits must be
given, e.g. if the original document is easily available, it must be produced, however, if not,
court will allow the nest best evidence through court procedure. This rule was re-stated in:
Omychund v Barker
Lord Harding J, ―The judges and sedges of the law have laid it down that there is but one
general rule of evidence, the best that the nature of the case will allow.‖

Brewster v Seawall
Held: Court explained the best evidence rule in regard to the documents:
―The reason why the law requires the original instrument to be produced is that the other
evidence is not satisfactory, that where the original instrument is in possession of the part and
where it is in his power to produce it, if he does not produce it or take the necessary steps to
obtain its production, but resorts to other evidence, the fair presumption is that the original
document would not answer his purposes and it would differ from the secondary evidence
that the person adduces.‖
The rule is made out in somewhat general terms in the sense that whatever is admitted by
court is the best evidence available.
a. Part of it is convenient to the public e.g. not to bring a whole register from the registry;
b. It is speedy, bearing in mind that justice delayed is justice denied;
c. Public policy (state secrets-relevant facts).

According to Wigmore, there are two reasons for the best evidence rule:
―As between the original and a copy, the latter is bound to have inadvertent or wilful errors
on the part of the copyist. Secondly, as between the original and oral testimony, there are
added risks and errors of recollection due to the difficulty of carrying in memory, literally,
the tenor of the document.
Wigmore‘s reasoning was supported in:
Vincent v Cole 1828 ER
Held: ―I have always acted most strictly upon the rule that what is in a writing shall be
proved only by the writing itself. My experience has taught me the extreme danger of relying
on recollections of witnesses as to the contents of written instruments, that they may be so
easily mistaken that I think, the purposes of justice require the strict enforcement of the rule.‖
Historical origin of the best evidence rule
It has been said that the law of documentary evidence originated from the primitive way of
trial by document where, if a person produced a document, it was viewed almost as
sacrosanct and that person would definitely lose and in those days, only the original
document became very unfair therefore a number of exceptions to the rule were developed:
1. Equitable remedy called an order for discovery. If the other side has documents which are
helpful to your litigation, you apply to court which then orders that other party to discover
those documents, i.e. produce them.

3. A number of exceptions developed by common law where, if the document is proved to be

lost, the other evidence may be admitted.
The above 2 have been codified in the UEA and are mostly found in s.64. The basis of these
exceptions is found in s.60- The contents of documents may be proved either by primary or
by secondary evidence.
S.64 provides for the particular instances when secondary evidence may be admitted:
Secondary evidence may be given of the existence, condition or contents of a document in the
following instances:
S.64(a)- Where the original is shown or appears to be in the possession of the person against
whom the document is sought to be proved, or of any person legally bound to produce it, but
who, after being given notice to do so, does not produce it. This section has 3 main
circumstances under each of which, the requirement of the original may be dispensed with:
i. Where the document is in possession of the adversary who refuses to produce it on notice;
ii. Where the original is in the possession of a person out of the reach of court and its
processes;
iii. Where the original is in the hands of a person legally bound to produce it but does not do
so after being given notice.
Lakmani Ramji v Shejji & sons [1965] EA 125
Facts: The appellant sued for payment for extra work done under a building contract. The
respondents‘ defence was that the parties had discussed the matter and had agreed on a fixed
sum for payment for all work done and that later, a cheque was sent to the appellant, with a
covering letter which stated that the cheque was in full payment of the appellant‘s dues. The
appellant said that he received the cheque but never saw the letter. The respondent produced a
carbon copy of the letter as evidence, which the trial court allowed, but the appellant
appealed on the grounds inter alia, that the trial court had not properly admitted the carbon
copy in evidence.
Held: The carbon copy was properly admitted in accordance with s.64 (a) which must be
read with s.65. The latter section provides that in order for one to adduce secondary, it must
be shown that the party proposing to give such secondary evidence has previous notice to the
party in possession or power over the document or to that person‘s advocate to produce the
document.
There is a prescribed form in which the notice must be if proceedings are done under the
Civil Procedure Rules. However, in criminal matters, there is no procedure, however, court
requires written notice.
S.64 (b) When it is proved that the contents of the original have been admitted in writing by
the person against whom they are sought to be proved or by his representative. In such a case,
secondary evidence may be admitted, but it must be the writing of the admission;
S.64(c) contains 3 main circumstances:
i) When the original has been destroyed or lost;
ii) Where the original is in the hands of a person not legally bound to produce it and who,
after being given to do so, does not produce the document;
iii) Where the person seeking to adduce the document cannot, for any other reason, not
arising from his own fault, produce the document in reasonable time.
To proceed under the first circumstance, one must prove that the original document existed
and show court that a diligent search for the document was conducted, but that one failed to
find it. One must also show destruction by e.g. swearing an affidavit as to the burning of a
house.
This is the most widely used exception to the best evidence rule because it is the most
accommodating.
S.64 (d) If the original is of such a nature that it is not easily movable, then secondary
evidence may be admissible e.g. if it is a building with certain marks on it, court may accept
photographs of marks on such a building as documentary evidence. Alternatively, court may
decide to visit the scene of the locus in quo;
S.64 (e) Where the original is a public document. See ss.75 & 76;
S.64 (f) Where the original is a document of which a certified copy is permitted by the Act.
See s.77;
S.64 (g) When the original consists of numerous accounts or other documents which cannot
be conveniently examined in court and the fact to be proved is the general result of the whole
collection, e.g. a fraud case, documents showing withdrawals on the account, etc. Here, court
accepts a summary of the collection of such books, however, a professional in that area must
be brought.
John Baptiste D’sa v R
Facts: The appellants, bank clerks were convicted of fraudulent false accounting and stealing
from their employer. At trial, a bank inspector gave evidence for prosecution concerning his
searches. On appeal, the admissibility of this evidence was contested, the appellants arguing
that neither the original books of accounts referred to by the Inspector were produced in
court, nor were copies of them, therefore his evidence was secondary and as such, not
admissible.
Held: The evidence was properly admitted under s.63 (g) and it laid down 4 main
requirements which must be satisfied for secondary evidence to be admissible under that
section:
i) The witness must be skilled in the examination of the documents in question;
ii) The witness must have examined the documents;
iii) The documents consist of numerous accounts or other kinds of documents not capable of
being conveniently examined in court;
iv) The secondary evidence must be for the purpose of proving the general result of the whole
collection of books.
In this case, all the circumstances were fulfilled.
S.64 (g) has an element of convenience, is tailored to avoid unnecessary delay and court may
not have the professional skills to examine the books therefore a professional is brought in to
help.
Brown v R [1957] EA 371 (Who is a person skilled in the execution of documents?)
THE EVIDENCE BANKERS BOOKS ACT cap7
This Act creates privileges in favour of banks and their books in as far as giving evidence in
Court is concerned.
What are the bankers‘ books with privileges?
These include ledgers, day books, cash books, accounts books and all other books used in the
ordinary business of the bank.
See s.2 for the definition of a bank.
S.3 provides the mode of proof of entries in bankers‘ books. There is no need to bring an
original document, but you may produce a copy of the banker‘s book. However, it must fulfil
certain requirements:
1. It must be verified as a true copy of the original;
2. S.4 of this Act requires that an officer of a bank must prove that the bank in which the
entry is found was one of the ordinary books of the bank and that the entry in issue was made
in the ordinary course of business.
Under s.6, special privileges are created for bankers. A banker is not compellable to produce
documents in his books or to appear as a witness about their contents in a case to which he is
not a party unless the court orders him to do so for a special cause.
See ss. 63(a), (c) and (g) of the Evidence Act (Special cause: A person skilled in
examination)
With documentary evidence, if you feel that the other party is relying on documentary
evidence, court will admit it if you do not refute this as it would imply acquiescence; or that
you concur or wish to use the document yourself. This matter was considered in:
Popatalal v Nanji
Held: If there is no objection to the admission of secondary evidence, the party failing to
object is presumed to have waived the right to object and cannot later object to the document
having been admitted.
PRESUMPTIONS PERTAINING TO DOCUMENTS
A presumption is an inference which the court makes, of the existence or non-existence of
certain facts.
There are both rebuttable and irrebuttable presumptions. If it is the former, evidence may be
adduced, however, where it is the latter, no evidence is adducible in as far as that
presumption is concerned.
S.4(1)-Whenever it is provided by the Act that the court may presume a fact, it may either
regard such fact as proved unless and until it is disproved or it may call for proof thereof.
However, in s.4(2), where it is directed by the Act that Court shall presume a fact, then the
court shall regard such fact as proved unless and until it is disproved. (Note the use of
mandatory language.)
S.4(3)- If one fact is declared conclusive proof of another and if the first fact has been
proved, then the court shall presume that the other fact has been proved. For example a
decree absolute in a divorce case is conclusive proof as to the end of the marriage.
Particular presumptions in documentary evidence
S.78 is on the genuineness of documents;
S.79 Presumption as to document produced as record of evidence.

R v Mitha
Facts: The accused was charged with perjury and as part of the evidence, prosecution
adduced the trial court‘s record of proceedings as the main proof of false statements allegedly
made by the accused. The accused challenged the admission as being improper, i.e. that
although it was adduced, he did not say it and the record was defective.
Held: Court may presume that the evidence recorded was that given and used against the
accused.
S.80- Presumptions as to the genuineness of gazettes, newspapers, Acts of Parliament, etc.
S.81- Presumptions as to documents admissible in the UK and Ireland. These are genuine and
admissible in Ugandan courts. If documents would be admissible in those countries without
proof or authentication, then Ugandan courts will admit them too. All one has to prove is that
before the UK and Irish courts, they are admissible without proof or authentication.
Venn v Venn
Facts: A document was sworn before a Commissioner of Oaths in England and it was sought
to be used in Kenya.
Issue: Whether the document was admissible in Kenyan courts?
Held: Since it was admissible in the UK without proof, it was admissible in Kenya.
See: Tootal Bodhurst Co. v Ahmed
S.82- Presumptions as to maps or plans made by the authority of Government. Court will
presume that they are accurately made and therefore admit them as genuine.
Magoti s/o Matofali v R
Facts: This concerned sketch maps drawn by policemen.
Issue: Whether or not they came under the presumption of the equivalent of s.82:
Held: A sketch plan drawn by a policeman must be proved to be accurate.
Rationale: The policemen were not experts in map drawing. The documents must therefore
be proved to be accurate and in any case, a policeman is not authorised by Government to
draw maps.
S.90- Documents that are 30 years old are presumed to be genuine.
S.89- Court shall presume that every document called for and not produced after notice to
produce is genuine, i.e. if it required, a stamp attestation, it was well done.
A presumption with regard to dispositions. A disposition is where s witness for whatever
reason, cannot be present in court, but instead sends written information. Court nay decide
that a disposition be made, i.e. that a group is sent out to record what that person says e.g.
affidavit, people to cross examine, render oath and that evidence is brought back as a
disposition. It is presumed to be genuine without calling the recorder or the witness to prove
whatever is in the disposition. Court also would not call the commissioner for oaths to prove
the contents.
See Magoti s/o Matofali v R here a disposition was used to impeach the credibility of a
witness.
Held. It was unnecessary to call the person who recorded the disposition inorder to adduce its
evidence.
See other presumptions in ss. 83-88