Documentary Evidence

• Meaning
• Classification /Type
• Admissibility thereof
• Proof of Documents
 1. Defining Documents
Section 3(1) of the TEA, 1967 defines what a
document is .

The definition has been stretched to include

electronic documents. (See the ETA, 2015)

 Documentary evidence is thus defined as all

evidential issues relating to admissibility of
documents.
 Contd..
An old Case law defining what a document is:
R v Daye [1902] 2 K.B. 313 at 340 where it was
held that:
“Documentary evidence is any kind of evidence
on which relevant information is printed upon”.

Considering the above case: would you think

it also embracing e-documents?
 Contd..
Basically, evidence nowadays include e-
documents or materials reducible into writing
that is stored in machines, including tape
recording, video taping, or computer records
(print outs).
 What do you do when faced with documentary
evidence?

As a general rule : All admissible evidence must

be relevant evidence. Thus: all documents
tendered into evidence must be subjected to the
same rules relating to the admissibility of
evidence. This means that if you are relying on
the contents of a document then you must first
show that it is relevant .
Remember that admissibility is a matter of law.
Read: Isidore Nsangu Tusevo [2005] TLR 424
In principle , thus, all documents must :
(a) Be authenticated, i.e., be proved to be
genuine/legitimate. They must exhibit a true
record.
(b) Establish that they must be relevant for them to
be tendered into evidence.
This is done by way of either oral or affidavit
evidence.
The standard used to authenticate the
document will depend on whether it is
submitted as hearsay or non-hearsay.
 Note also that documentary evidence is
subject to the exclusionary rule (i.e., the rule
on hearsay evidence) as any other evidence.
Thus: the point is that before a document is
admitted into evidence it must not breach the
exclusionary rule – See Myers vs DPP [1965]
AC 1001.
Documents which are used for non-hearsay
are admitted in the same way real evidence is
admitted, i.e., by calling direct evidence of the
person who can speak about its creation,
content and context.
 Proof of Contents of a Document
Basically, before considering proof of contents
of a document its relevance and admissibility
must first be determined.
Once determined, the document will be
received into evidence as an exhibit to be
considered by the Court.
See: JICA vs Khaki Complex Ltd [2006] TLR
343. (The court referred to Order XIII Rule 4(1)
and Rule 7(1) & (2) of the CPC, 1966.)
Section 63 of TEA provides further on proof of
contents of a document to be in two ways:
(a) Primary or
(b) Secondary evidence.
 One cardinal rule relating to documentary
evidence is the Best Evidence Rule though
this rule has its challenges when you consider
them in light of e-documents.
Section 64 of TEA defines what Primary
evidence means and reflects the Best
evidence Rule: the document itself produced
for court’s inspection, see section 66 of TEA.
 Proof by Secondary evidence
Section 65 of TEA defines what secondary
evidence is and include certified copies.
When is secondary evidence is admissible into
evidence?
As a general rule proof content of a document is
by way of bringing the document itself in its
original form and the court will inspect it.
In Batera v DPP [1984] 164 CLR, 180 it was
held that:
“the effect of a document must be proved by
the production of the original document itself
and not the secondary evidence unless the
absence of the original is accounted for and
excused.”
Section 67 of TEA speaks of the circumstances
under which secondary evidence may be
given. (Section 67(1)- read it with section
67(4); Section 67(1)(e) read it with Section
67(5) of TEA).
 Notice to Produce – Sec.68

Section 68 of TEA refers to notice to produce

secondary evidence falling under section
67(1)(a) of TEA.
Whenever reliance of Section 67(1)(a) is to be
sought by a party, then a notice must be
availed to the adverse party in whose an
original is believed to be held. However, the
section given an exception in its proviso as
when such a notice may be dispensed with.
Producing & Tendering of Documents in Court
Producing and tendering a document in court are
two different processes .
Production refers to the situation where the court
is invited to look at the document and this is
done through a witness in the witness’s box.
The witness must first be invited to identify the
document; explain what it is and its relevance or
significance to the case.
At this point the document is yet to be evidence
for the reason that it has not been made available
for the court’s inspection.
Tendering a document is a process that
follows production of it in court.
 At this point the formal rules of evidence will
apply to it meaning that tendering of the
document means putting it into evidence or
making it available to the court for
consideration.
It is here that the court will establish its
RELEVANCE and ADMISSIBILITY.
If it is a signed document , the signature must
be proved too under section 69.
 Proving a hand writing in a Document
 As stated, sec. 69 applies where a document is purported to be the
one signed or handwritten by the person tendering it into evidence.
Proof of the signature or the handwriting is necessary.

 Proof of the handwriting may be given by – testimonial evidence;

opinion or comparison.

 Some documents may require attestation. Attestation is a process

which signifies that the signature of a document was done in the
presence of an attesting witness . (See Section 70 of TEA).
Documents such as Mortgages documents require that they be
attested.

 So proof of execution of such a document require that the

attesting witness be summoned to testify having seen the author
appending his/her signature to the document if the document is
by law required to be attested if it is to be valid.
 See further- Sections 71 to 75 of TEA.
 Cases to Read
1. Uganda Breweries v URC, [2002] 2EA 634.
2. Kamuli vs Shah [2002]EA 392
3. Abdalla Abass Najim vs Amin Ahmed [2006]TLR 55
4. Stella Masha v Tanzania Oxygen [2003]TLR 64
5. Lakhaman Ramji v Shivji Jessa & Sons [1968]EA 125
6. Ilumunatus Mkoka v R. [2003] TLR 245.
7. Rukidi v Iguru & another [1995-1998] 2EA 318.
8. DPP of Tanzania v Akbar Rashid Nathan [1966] EA
13.
9. Salau Dean v R [1966] EA 272 (evidence of a
tape).
 Public vs Private
Documents
Documents may also be classified as : Public and
Private documents.
Public documents are covered under section 83
of TEA.
In Sturia v Freccia (1880) 5A.C. 623 at 541 a
public document was defined to mean “ a
document that is made for the purpose of the
public use of it and being able to refer to it…”
The test of its publicity is that the general public
is interested in it and is entitled to see it .
 As a general rule, a party relying on the contents of a
document must produce its original (primary
evidence). However, section 83 is an exception when
the document is public document since a certified
copy will suffice as a means of proof.
 See Secs.85 and 86 of TEA, 1967
 Section 87 provides for other means of proving a public
document.
See: Manji v Patel & Others [1960] EA 38.
See also: Shrin Jessa vs Alipio Zorilla [1973] LRT No.84.

 Private documents are defined under Section 84 of the

so-called Private documents. As a general rule these
documents must be proved by producing the original.
 Exclusion of Oral by Documentary Evidence

As a general principle based on the best evidence

rule, contents of a document are proved by
primary evidence unless otherwise where
secondary evidence is admissible.
Section 100 (1) and 101 of TEA precludes oral
evidence of contents of a document too. See
Kanji and Kanji v R ]1961] 1 EA 411.
Read further Sections 102 to 109 of TEA as
regards latent (hidden) and patent (obvious)
ambiguities in a document.