DOCUMENTARY
EVIDENCE
Statements contained in documents are subject
to the general rule of admissibility and relevancy. In addition however documents attract further
inquiry in terms of proof of the document.
Proof of proper execution of a document and
admissibility of extrinsic evidence.
In Uganda context the above aspects
are addressed under sects 60-100 of the Act.
These provisions are generally divided into five topics.
Classification
of documents.
Proof
of execution of documents
Proof
of contents of documents.
Presumptions
relating to documents
Parol
evidence.
In Uganda s.2 (1) (b) of E.A 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 these means intended to be
used or which may be used for the purpose of recording that matter.
Documentary evidence is defined as all
documents produced for the inspection of the court.
In Tanzania, the Evidence Act defines a
document as any wording, handwriting, type writing, printing, Photostat copy
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.
Today, the equivalent of paper may be a disc,
film, tape and may convey information by symbols, diagrams, pictures as well as
by words or numbers
The term document in the law of evidence
therefore means more than the ordinary and may include photographs, signs
posts, tomb stones etc.
In R V
Magsud Ali.
A murder was discovered on 27th-April 1964. 2
days later the appellant went voluntarily into a room in which there was a
hidden microphone which was itself connected to a tape recorder in another
room. The tape which remained in the
custody of the police throughout was imperfect because in addition to the
voices of the appellants, there were street noises recorded on it. Not
everything that the appellant said was distinguishable. The language they used
was limited to a particular area in Pakistan and depending on the
context, the same words could have different meanings. Before translation into
English, the words had to be first translated into a partisan national
language. The tape recording was of vital importance because it contained
matters that nearly amounted to a confession.
On the issue whether the tape recording and
transcript translations of it should have been admitted in evidence, it was
held that a tape recording is admissible in evidence provided the accuracy of
the recording can be approved and the verses recorded can be properly
identified and that the evidence is relevant and admissible.
The Court however cautioned that such
evidence should always be regarded with some caution as assessed in light of
all circumstances of the case. That
there can be no question of laying down any exhaustive set of rule by which the
admissibility of such evidence should be judged.
Lastly, that provided the jury is guided by
what it hears from the tape recording and it bases its ultimate decision on
that there is no objection to a copy of a transcript of a tape recording
properly proved being put before it.
In
Salau Dean V R
Two tape recordings translated into English
were held to have been properly admitted on the authority of Masgud Ali. The appellant was accused of corruption.
Walusimbi V Kaaya.
Uganda V Mukasa Deo.
CLASSIFICATION
OF DOCUMENTS.
There are three categories of documents
Attested
& un attested documents.
Attested documents are those which require
execution to be witnessed i.e. there must be witnesses on the signatories.
There are certain documents which by law must be witnessed. These include: Wills under Succession Act, Transfer Deeds
and Powers of Attorney under the R.T.A.
Un attested documents on the other hand are
those which are not required by law to be executed in the presence of any
witnesses in order to be valid.
Public
and Private Documents
S.73 lists what would constitute a public
document under the law of evidence in Uganda. These include;-
a) Documents forming the acts or records of
the Acts of a sovereign authority, official bodies and tribunals, public
officers (legislative, Judicial & executives) whether of Uganda or of a
foreign country.
b) Public records kept in Uganda of
private documents.
Under s.74 all documents other than those
specified in s.73 are private documents.
In
Kafeero Vs Turyagyenda.
The issue was whether there was a valid
partnership between parties since the partnership deed had not been registered
for a period of six (6) years.
It was held that the registration or non
registration of such a document has no bearing on its validity or invalidity
since the registration of documents Act did not place a time limitation on
registration the matter being left to the convenience of the parties.
The significance of the distinct between
public and private documents lies on the method of proof. While public documents can be proved by
producing as certified copy, private
documents cannot and the courts insist on production of the original as dictated by the best
evidence rule.
Walusimbi V Kaaya.
Uganda V Mukasa Deo.
Tootal Bodhurst V Ahmed.
Primary
evidence and Secondary Evidence.
These are coupled under sections 60-65 of the
Act.
Under section 60, the contents of documents
may be proved either by primary evidence or secondary evidence.
Primary evidence means that document itself
produced for the inspection of court.
In DPP
Vs Nathan:
The appellant was convicted of forgery of air
tickets by educing them as having been issued by an IAIA certified office
whereas not. Part of the evidence admitted was a loose-leaf cychostyled volume,
which the judge rejected because it was not an original.
It was held on appeal that the loose-leaf
cyclostyled volume was apparently produced by a process capable of making many
other documents uniformly the leaves produced in evidence and as such was
admissible as primary evidence.
Section 61 gives explanations of primary
evidence.
Secondary evidence is delt with under section
62 of the act and include;
Certified copies, copies made using processes
that can ensure accuracy of the copy, copies made from or compared with
original, counterparts of documents as against parties who didn’t execute them,
oral accounts of persons who have seen the document as regards the content of
that document.
Its mandatory that documents be proved by
primary evidence excepts as provided in the Evidence Act.
PROOF
OF EXECUTION OF EVIDENCE.
Execution is a crucial aspect of documentary
evidence because before a document is relied on in court, it must be admitted
and before being admitted it must be approved to be genuine i.e. that it was
executed by the persons who appear on its face to have executed or it was
properly executed.
In
Stamper Vs Gryffen (1856) 20 ED 320.
It was held that no writing can be revealed
in evidence as a genuine writing until it has been proved to be a genuine
writing and none a forgery until it’s proved to be a forgery.
Proof of genuiness of a document can be
considered under two heads.
a)
Public
documents
b)
Private
documents.
Public documents:
S.75 of the act provides for certified
copies. Any person is entitled to a
certified copy from any public offices having custody of public documents upon
compliance with laid down procedure.
Under S.76 such certified copies may be
produced in proof of a public document.
s.77 takes about proof of other public
documents such as acts of government acts of the executive and legislature,
acts of municipal bodies and other public documents of any other class.
s. 78 all certified copies shall be presumed
by the courts to be genuine if they are substantially in the form and purport
to be executed in the manner directed by law.
The courts also presume that the officer who signs does so in the
official capacity indicated and they shall not normally inquire into that
capacity.
Private
Documents
These are treated differently from public
documents. There are certain documents
required by law to be attested and these must be proved by at least one witness
who is required to prove execution of documents e.g. a will s.67.
This is a realization of best evidence rule
in the sense that primary evidence is adduced/produced, however there are
exceptions to this rule. In s.68 of the
Act where no attesting witness is alive or can be found. It must instead be proved that the signature
of person executing the document is in handwriting of that person.
Proof
of Handwriting.
In
Hassan Salem V R (1956) EA 126, the appellant was alleged to have forged a
postal receipt for registered letter.
Part of the evidence was the opinion of handwriting expert who after
comparing the writing on the receipt and that of the appellant had concluded
that the same person wrote both.
On appeal it was held that the most that a
handwriting expert can properly say in an appropriate case is that he does not
believe that a particular writing was by a particular person or positively and
he should point out a particular feature.
In
Walusimbi Vs Standard Bank (1981) HCB 193.
The Plaintiff was a customer of the defendant
bank. The plaintiff discovered various
debt entries on his account. He claimed not to have issued the cheques
(14) from which these entries were made and so he sought a refund from the
defendant bank for the amount. He
indicated that he had never requisitioned for another cheque book and that the
14 leaves didn’t come out of his cheque book.
Held: That the proper procedure to be followed when
submitting a question document for examination by an expert is that if the
question writing can’t be distinguished by other conditions than those in the
writing itself, it’s always advisable to submit it with the genuine writings
without any indication as to which document or writing is suspected. And in whatever way the question is
presented, no outside facts bearing the question of genuiness should be given
until after a definite opinion has been given by the experts.
That the following general features should be
looked at carefully when a question document is being examined.
i)
The
general appearance or pictorial effect.
ii)
The
general style.
iii)
The
slant particularly in the upward and downward strokes.
iv)
The
spacing of letters inwards.
v)
The
size of capital and small letters.
vi)
The
proportion of individual letters.
vii)
Pen
lifts.
viii)
The
connection of letters with each other.
ix)
Speed
of writing
x)
Pen
pressure and shading.
xi)
Tremour
xii)
Pen
strokes and final strokes.
xiii)
Retourching
of white lines.
xiv)
Pen
pauses.
xv)
Line
equality in upperstrokes and down strokes and on beginning and finishing of
strokes.
The court also made a note that its not a
mere umpire where there are two opinions of experts but as an expert of experts
it has to evaluate the opinion of the experts in the context of all evidence
and record its verdict.
Note that there is also sect. 25 of the act dealing with the opinion on handwriting and
when it’s relevant. This is the opinion
of a person who is not an expert in terms of training or experience but one who
is acquainted with the handwriting in question.i.e. he/she has seen the person
write etc.
In other cases a party may admit execution of
unattested document and in so doing provides sufficient proof of its execution
as against him or her though it’s a document which is required by law to be
attested.
In Pope
V Republic (1960) EA 132.
The appellant was convicted of fraudulent
false accounting. Money had been paid out to ghosts and one of the documents
recording the payments had the appellant’s handwriting. He appealed on the
grounds interalia that the trial judge had failed to properly direct the jury
on the standard of proof necessary before a document could be accepted as being
the handwriting of the appellant.
Court held that once the evidence that the
document alleged to be in the handwriting’s had not been challenged and also
the appellant had taskly admitted the fact there had been no failure to
properly direct the jury and there was no miscarriage of justice.
In cases of estoppel, prior conduct by a
party may disentitle him/her from claiming that a document is not genuine i.e.
the opponent in a case is by prior conduct estopped from denying the
genuineness of a document and as such there will be no need to call an
attesting witness.
Another instance is in cases where the
30-year-old rule applies s.90 of the EA contains a presumption as to the
genuiness of the document that is 30 years old and is produced from the custody
that the court deems proper. Documents
are deemed to be in proper custody if they are in a place in which and under
the care of a person with whom they are deemed to be.
Under section
70.EA, if the attesting witness denies or doesn’t recollect the execution
of the document, its execution may be proved by other evidence.
DOCUMENTS
THAT DON’T REQUIRE ATTESTATION.
These are delt with under section 76. It 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 so much of the document as is alleged to be in
that person’s handwriting must be proved to be in his/her handwriting.
Under section 72(2) EA, the court has power
to compel a person present in court to write words or figures for purposes of
compulsions.
In addition under section 71 EA, documents that do not require attestation but which
are attested may be proved as if they were not attested.
R V
Patel R
GENERAL
RULES UNDER DOCUMENTARY EVIDENCE.
General rule is that documents must be proved
by primary evidence s.63. Any person who wishes to rely on it must
produce an exhibit of the original
documents.
Many authors have agreed that the rationale
for this rule is the best evidence rule. According to Phipson the best evidence must
be given that the case permits.
The best evidence rule states that in all the
best evidence must be tendered before court which the nature of the case can
permit. In cases of documents, production of the original is the best ideally
that can be done in proof of the document.
This rule was restated in the 1945 case of:-
Omyeland
Vs Baker
Where the Court retaliated that “judges and
sages 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”.
Rooster
V Sea well
Court observed that the best evidence rule
with regard to documents is insisted upon because “other evidence’ a part from
the original is not satisfactorily and where the original is in possession of a
party and is in his power to produce it, if he doesn’t produce it or take the
necessary steps to obtain its production
but resorts to other evidence, the fair presumption is that the original
document will not answer his purposes and that it would differ from the
secondary evidence which he adduces.
Note:
However, that this rule is laid out in such
general terms that normally what is admitted in court is in fact the best
evidence available. If its primary
evidence well and good, if it’s the secondary evidence and is admissible that
is also okay.
Allowing secondary evidence is based on
several social considerations:-
·
Public
convenience e.g. taking a Certified Copy
·
Speed
and economy in administration of justice.
·
Public
policy
The law is to the effect that the best evidence
rule is only applicable on matters relating to proof of contents of a document
but has no application to proof of existence or identification of a document.
In Commissioner
of railways vs. Young, the court admitted oral description of contents of a
lable on a blood jar for the purpose of identifying it and held that you cannot
invoke the best evidence rule on matters concerning identification or existence
of a document.
However in Augustine vs. Challis (1897) 1 Exch 279, the court said that the
landlord could not begin talking about the contents of a lease without it being
adduced court once it is shown to exist.
Rationale
/justification for the best evidence rule.
According to Whigmore the attempt to explain
documentary evidence in terms of the best evidence rule is important because:-
i) Prevention of fraud whereby someone
may intentionally alter the contents of a document. Brewster vs. Sowell. Court observed that the best evidence rule
with regard to documents is insisted upon because “other evidence’ a part from
the original is not satisfactorily and where the original is in possession of a
party and is in his power to produce it, if he doesn’t produce it or take the
necessary steps to obtain its production
but resorts to other evidence, the fair presumption is that the original
document will not answer his purposes and that the court should not allow a
person to get justice by concealing evidence which would otherwise have
influenced the decision of the court.
i)
Another
justification is interpretation purposes. In this case the exact words of an
instrument may be crussial for constructing the true nature and effect of the
document.
ii)
As between an original document and a copy,
the latter is more likely to have inaccuracy whether willful or in adverted.
iii)
As
between an original oral testimony, there is the added risk of errors of
recollection due to the difficulty by carrying on the memory the contents of
the document.
In
Vicent Vs Paul
The judge stated “I have always held most
strictly upon the rule that what is in writing shall only be proved by the
writing itself. Experience has taught me
the extreme danger of relying on recollections of witnesses as to the contents
of written instruments. They may be so easily mistaken that the purposes of
justice require a strict enforcement of the rule.
HISTORICAL
ORIGINS OF THE RULE.
It has been argued that the law of
documentary evidence originated from a primitive way of trial such that when a
person produced a document, it was almost sacrosanct and the person won the
case i.e. if he produced the original document, it was like 90% was there if
the person produced a copy that person automatically lost the case.
At that time, only and original documents
would stand up in court. It was later realized that this was unfair and
sometimes occasioned miscarriage of justice and as a result exceptions
developed.
One of those exceptions was an order for
discovery which was an equitable remedy and under which if an opponent had
possession of vital document, then one could apply to court to have that
opponent produce that document for inspection.
Where the document was proved to have been
lost, then the person concerned could apply to court to adduce secondary
evidence.
These common law developed exceptions are
presently part of our law of evidence,
THE
EXCEPTIONS TO THE GENERAL RULE UNDER S.63
S.64 contains most of the important exception
evidence of the existence, condition or contents of document.
1.
(a)
Where the original is shown or appears to be the possession on power of a
person against whom the document is sought to be proved or any person out of
reach or not subject to process of the Court or of any person legally bound to
produce it and when, after the notice to produce the document has been given,
and that person doesn’t produce it.
S.65 contains the rules governing the notice.
It has been said that
the rationale of s.64 is first to avoid unnecessary delay as for example when
the person is broad.
Secondly, that
involves an element of justice i.e. if a person doesn’t produce it/hand it
over, then the person without the document should not be left to suffer the
consequences but should be allowed to produce secondary end.
64 (1) (b)When the
existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved or by his/her
representative in interest. Slatterie vs. Pooley held that the admission by the
defendant that he had covenanted to indemnify the plaintiff against the debt
relieved the plaintiff from the need to prove the deed in which the defendant
made the promise.
64 (1) (c) when the
original has been destroyed or lost or is in possession of power of a person
not legally bound to produce it and who refuses to or doesn’t produce it after
reasonable notice or when the party offering evidence of its contents can’t for
any other reason not arising from his/her own default neglect produce it in
reasonable time. However the person must have conducted reasonable search and
this will depend on the nature of the document. Brewster vs. Sowell. Held that the presumption is that a man will
keep all documents which are of value to him and those of future use and the
reverse is also true that a man will throw away all those documents whose value
has been discharged.
64 (1) (d) When the
original is of such a nature as not to be easily moveable e.g. tombstone,
signpost. Owner vs. Bee hive Spinning
Co. Ltd. Secondary evidence of a licence required to remain continuously on
the factory wall was admissible.
64 (1) (e) Where the
original is a public document within the meaning of s.73. Uganda vs. Mukasa. Held that a birth certificate was a public
document because it was open to public inspection within section 73.
64 (1) (f) Where the
original is a document of a certified copy which is by law allowed to be
adduced.
64 (1) (g) Where the
original consists of numerous accounts or other documents which can not
conveniently be examined in court and the fact to be proved is the general
result of the whole collection.
Under “a”,
“c’, and “d” any secondary
evidence of the contents of the document is admissible.
S.62 defines secondary evidence.
In the case of “b” (admission) the written admission is the one which is
admissible.
In the case of “e” and “f”, a certified
copy of and no other kind of secondary evidence is admissible.
Under “g”
evidence may be given of the general result of the documents by any person who
may have examined them and who is skilled in the examination of such documents.
George
Mudi Lawrence Brown & Others Vs R
On the question of who is skilled in
examination of documents)
It has been argued that the reasons for s.64 (g) are for convenience, avoidance
of unnecessary delays and lack of skill by courts in examination of documents.
In John
Baptist Marcus D’SA Vs R
The appellants were bank clerks. They were convicted of fraudulent false
accounting and stealing from their employer.
At the trial, the bank‘s inspector gave evidence of his searches in the
books of accounts of the bank and the magistrate in his judgment made reference
to an un proved document.
The appellants argued on appeal that contrary
to the evidence (bank books) Act, neither the original referred to by the
inspection nor copies were produced and that the inspections’ evidence was
inadmissible as was the un approved document referred to by the magistrate.
It was held that s.63 (old) of the Act sets out
exceptions to the general rule in s.62 (old) which requires documents to be
proved by primary evidence. Since the subject matter of the inspection’s
evidence, Its purpose and his capacity fulfill the requirements of s.63 (g)
[new s.64 (g)] this secondary evidence was properly admitted and the court
observed that under that provision [s.63] four things had to be satisfied.
1.
The
witness had to be skilled in the examination of the document in question.
2.
The
witness must himself have examined the documents.
3.
The
documents consist of numerous accounts of other kinds of documents not capable
of being conveniently examined in Court.
4.
The
secondary evidence must be for the purpose of proving the general result of the
whole collection.
BOOKS OF ACCOUNTS.
Of
particular interest with regards to books of accounts is the evidence [Banker’s
books of Act cap 7]. This act contains
privileges in favour of bankers and their books. It defines banker’s books to be or include ledgers,
day books, cash books, account books and all other books used in the ordinary business
of a bank.
According
to s.2 of the Act, proof of entries
in banker’s books shall be by way of a copy of an entry in the banker’s book
and of the matters recorded therein and that copy shall be prima-facie evidence.
But
such a copy must fulfill certain requirements before being relied upon.
·
It must be verified as a true copy of
the original e.g. can be done before a bank manager, commissioner for oaths
etc.
·
The books from which the copy is made
must be proved to be one of the ordinary books of the bank.
·
It must be proved to have been made in
the usual and ordinary course of business and that the book is in the custody and
control of the bank
·
Must be proved that the copy was
examined with the original and it’s correct.
Under section 5 of the act, a banker is not
compellable to produce books in legal proceedings to which the bank is not a
party or to appear as a witness in such proceedings unless the court orders
otherwise.
Under s.6, a party may apply to the court to
be allowed to inspect and take copies of any entries in the banker’s book for
purposes of his proceedings.
PRESUNPTIONS UNDERLYING THE LAW OF
DOCUMENTARY EVIDENCE.
These
presumptions are generally described as inferences that the court makes about
the existence or non- existence of certain facts. e.g the presumption that a
person with possession of recently stolen property is a thief. Some of these presumptions are rebuttable
while others are not.
An
example of a rebuttable presumption is one in criminal law that a child between
seven (7) and (12) years is not criminally liable.
That
kind of presumption can be rebutted if it’s true that either the child had a
requisite capacity or at the time he committed the offence knew what he is
doing.
Under
the law of documentary evidence, there are a number of presumptions found in
s.78-90.
S.78.
It’s a presumption that certified copies are genuine.
Under
s.79, documents, recordings and judicial official proceedings are presumed to
be genuine.
R Vs Mlisa
The
accused was charged with perjury and part of the evidence against him consisted
of the record in an earlier case. He
challenged the admission of the evidence, it was held on appeal that under this
section court may presume that the evidence recorded is the evidence which was
actually given and used by or against the accused. That the records of a trial
court are presumed to be good records of what transpired.
Under s.80
gazettes, news, papers, journals, act of parliament are all presumed to be
genuine documents.
Under s.81, there is a presumption that
documents admissible in the U.K or the Republic of Ireland without proof of a
seal or signature are genuine.
In Venn Vs Venn
An
affidavit of service upon the woman representative in England was sworn before
a commissioner for oaths in England. Issue, whether that affidavit was
admissible in Kenya.
Held:
that it was admissible without any form of proof because it saw admissible in
U.K under the circumstances in S.81.
S.82
maps or plans made by the authority of the government of Uganda are
presumed to be accurate.
S.83
law books, law reports made under the authority of government are presumed to
be genuine.
Under s.84, all documents that are executed
outside Uganda, but are notarized are presumed to be genuine. E.g. transfers made outside Uganda.
S.85,
there is a presumption that documents purporting to give powers of attorney
that are either executed before or authenticated by a notary public, judge, magistrate or representative of any common wealth country
are presumed to be genuine i.e. the
presumption is not that every person of attorney is genuine.
S.86,
documents purporting to be certified copies of any judicial proceedings of the
country that is not part of the common wealth are presumed to be genuine and
accurate if its properly certified.
S.87,
there is a presumption about genuiness of books, maps chats on matters that are
public or of general interest so long as they are produced for the inspection
of courts.
S.88,
documents or telegraphic messages are presumed to be genuine record of what was
produced to that office.
S.89,
the presumption every document that is called for and not produced after a
notice to produce has been given, there is a presumption that it was attested,
stamped and executed in the manner required by law.
S.90.
It’s presumed that documents that have been in existence for 30 years are
genuine.
EXCLUSION OF ORAL BY DOCUMENTARY
EVIDENCE.
This
deals with admissibility of extrinsic evidence to prove or vary terms of a
document. The main issue that arises
normally is “whether oral evidence can be admitted to prove or vary the terms
of a document.”
The
principle generally is that where there is written evidence, any other evidence
to substitute or vary the terms, or contradict the terms of the document, is
not admissible. This principle applies
mainly in two situations.
Contracts
reduced into writing. Where the terms of the contract must be proved by
reference to the document itself. No
oral evidence which could vary or contradict the terms is admissible.
This
was well stated in the case of:-
Kilonzo s/o Kanyanya Vs Purshotam
Court
held that where the terms of a contact have been reduced to a document, no
evidence is receivable as to the nature of the transaction except the document
itself.
Secondary,
transactions required by law to be in writing e.g. under the Contract Act, contracts
of guarantee, transfer deeds, contracts under the Money Lenders Act etc.
In Damodar Jamnads Vs Noor Mohammad.
The
appellant was a licenced money lender who lent money to respondent and the
transaction was secured by a promissory note and personal guarantees by the respondents.
It was held that oral evidence can be led as to the memorandum in writing
reporting the borrowing.
On
appeal, the issue was whether the burden of proving the existence of such
memorandum can be discharged by oral evidence.
It was
held that the onus of proving the existence of the memorandum would only be
discharged by production of the memorandum itself and save where secondary
evidence is admissible, oral evidence of such a memorandum is inadmissible.
Parol Evidence Rule.
The
parol evidence rule is contained in sections 91-92
.
Section
91, provides that “where the terms of a contract have been reduced to the form
of a document and all cases in which any matter is required by law to be in
writing in a form of document, no evidence except as mentioned in section 79 shall be given in proof of
the terms of that contract except the document itself or secondary evidence of
its contents in cases which secondary evidence is admissible under the Evidence
Act.
Section 92 provides that; when the terms of any
such contract, grant or other disposition of property, or any matter required
by law to be reduced to the form of a document, have been proved according to
section 91, no evidence of any oral agreement or statement shall be admitted, as
between the parties to any such instrument or their representatives in
interest, for the purpose of contradicting, varying, adding to or subtracting
from its terms;
These
two provisions prohibit the adducing of oral evidence to vary or otherwise the terms
of the document. But if the oral
evidence doesn’t affect the terms then it will be admitted.
In Foires Vs Thakrar
The
Court of appeal allowed the admission of oral evidence to show that the date
written on the guarantee was not in fact the date of its execution.
The
rationale for the above rule is that parties have made a contract and the duty
of the Court is to interpret what the parties wrote down. This is derived from the principle of
sanctity of contract” That the parties of their own free will have entered into
a contract and in addition that the document itself is the best evidence of
what the parties agreed and intended.
In R V Misa.
It was
held that once the evidence is in writing, its best evidence of what the
parties intended.
THE EXCEPTIONS TO S.91-92.
Under s.91, its provided that where the law
requires a public officer to be appointed in writing, and its shown that any
particular person has acted as such an officer, a writing by which that person
was appointed need not to be proved.
Further,
s.91 wills admitted to probate in Uganda may be proved by the
probate.
s.92 (a), any fact may be proved which will invalidate a document
e.g. (illegality, capacity, fraud, failure of consideration, mistake of law or
fact.
In Patel Vs Patel
The
plaintiff argued that once the transaction in question was a money lending
transaction, the plaintiff wasn’t a licensed money lender, the transaction was
illegal and the court allowed the admission of the defendant’s oral evidence to
invalidate the document.
In twentechos Overseas Trading Co. Vs
Kanfi.
The
respondent entered into a hire purchase agreement which the appellant. There was an allegation that the respondent
had paid all the money and was thus entitled to transfer of the vehicle. There was a document showing receipt of a
certain sum of money made up by cash and the value of an old car that the
respondent had traded in.
Held: that the appellants should show what the true
consideration was and whether there was total failure of consideration. In evidence adduced by the appellants was in
fact an exception of a conditional nature.
Uganda Produce Co. Vs
Under s.92 (b) the existence of any separate
oral agreement as to any matter to which a document i.e. silent and which is
not inconsistence with the terms of the document, nay be proved.
In Hamper V Jetha Limited
A
letter of guarantee was signed by three out of four directors. Oral evidence was allowed because the letter
was silent on whether the signature of the 4th director was a
condition of the guarantee.
Under
s.92(c), existence of a separate oral agreement consisting of a condition
precedent to the attaching of an obligation under a contract may be proved.
In Gai vs Madal
The
respondent gave the appellant a postdated cheque. They agreed orally that the cheque would not
be cashed until the respondent had received certain funds on his account. When no funds were forthcoming the appellant
said that he presented the cheque and was bounced. The respondent attempted to adduce oral
evidence that the parties agreed that the cheque would only be cashed when the
respondent received funds on his accounts.
Court
said that, the oral evidence was admissible to show that it was the intention
of the parties that the liability would not accrue until funds had been
deposited on the respondent’s account.
Under
s.92(d), the existence of any distinct subsequent oral agreement to rescued or
modify any such contract may be proved except in cases which that contract is
required in accordance to the law relating to registration of documents.
In Ishakai Vs Jusub.
The
plaintiff sued for unpaid rent relying on an agreement regarding the renting
and subsequent oral agreement regarding the rent payable.
On the
objection that the subsequent oral agreement wasn’t admissible, it was held
that the tenancy agreement was an agreement for lease and there was nothing in
law to prevent the parties before rent was paid to agree that the rent should
be affixed term and as such the subsequent oral agreement (evidence) was
admissible.
Unders.92(e),
any usage of custom by which incidents not expressly mentioned in the contract are
usually annexed to contracts of that description may be proved of the annexing
of this would not be repugnant to or inconsistent with the terms of the
contract.
Brown
v Bryan
The
reason of this exception of usages and custom admissible in order to get to the
true meaning of what the parties agreed in the contract.
Under s.92 (f), any fact may be proved which shows in what manner the
language of the document, relates to the existing facts. This is always the rule of interpretation.
Between
s.93-100, there contains rules of interpretation of documents
S.93:
Exclusion of evidence to explain or amend ambiguous documents.
S.94:
Exclusion of evidence against application of document to existing facts.
S.95:
Evidence as to documents un meaning in reference to existing facts.
S.96:
Evidence as to application of language which can apply to one only of several
persons.
S.97:
Evidence as to application of language to one of two sets of facts, to neither
of which the whole correctly applies.
S.98:
Evidence as to meaning of illegible characters etc.
S99:
Who may give evidence of agreement varying terms of document?
S.100:
Saving of provisions of Succession Act relating to Wills.
Read examination of witnesses. Sections
134 to 166 of the Evidence Act Cap 6.
Examination in chief, cross examination
and re-examination.
