law of evidence

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 4^th 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.