EVIDENCE LAW

1. Introduction.

The best evidence in documentary evidence is the original document itself which is also known as primary evidence. The best evidence rule is to that effect that in any proceeding in the court of judicature where a party intends to rely on a document the document itself must be produced. This is the evidence that the courts prefer to any other evidence. However there are circumstances when secondary evidence which may take the form of certified copies of the original document or copies of it produced by mechanical means to be adduced in court in the satisfactory explanation of absence of best evidence which the courts require to be adduced.

2. Definitions.

Blacks law dictionary defines a document as something tangible on which words symbols or marks are recorded. Section 2(b) of the Evidence Act Cap 6 defines a document to mean any matter expressed or described upon any substance of letters, figures or marks or by more than any one of those means, intended to be used or which may be used, for purpose of recording that matter. And documentary evidence at section 2(c) of the Evidence Act means all documents produced for the inspection of court.

Humpery SJ in Hill v R stated that: a document must be something which affords information to constitute a document, the form which it takes is immaterial, it may be anything, on which the information is written or inscribed, paper, stone or metal.

Peter Murphy states that documents include in addition to documents in writing; any map, plan graph or drawing, photograph, film or negative, or other device in which one or more visual images are embodied so as to be capable of being reproduced there from, disc, tape, sound track in which sound or data are embodied so as to be reproduced there from.

3. The best evidence rule.

The best evidence rule is a rule to that effect that in any judicial proceeding a party who intents to rely on contents of a document must produce the document itself. This rule in essence requires that documents be proved by primary evidence which is production of the document itself and not a copy of it. This is illustrated in the case of Augustien v Challis where a land lord who was called as a witness made reference to a lease which was not produced as documentary evidence in court it was held that the evidence of the landlord was inadmissible because the moment it appeared that there was a lease, he could not speak about its contents without producing it. And in another case of MacDonnell v Evans in an action on bill of exchange counsel for the defendants in cross examination of a plaintiff witness asked questions concerning a letter charging him of forgery. Counsel for the plaintiff objected to the questions on ground that it was an attempt to get in evidence the contents of the other letter without producing the document itself. The question was disallowed because it assumed that there was a document in existence which should have been proved by the production of the original. Section 91 is an aspect of the best evidence rule” and relates to the exclusiveness of documentary evidence such that where a contract grant or any other disposition of property has been reduced to the form of document, that document must be produced for it would be the best evidence of the agreement or intent of parties. Secondary evidence (including oral evidence) is admissible only in very limited circumstances because the written document must purport to be complete, unambiguous and unconditional.

Documents are classified into two groups of public documents as well as private documents. Section 73 of the Evidence Act Cap 6 refers to public documents as being documents of public interest issued or published by a political body or otherwise connected with public business. And these are said to include documents forming records of Acts of sovereign authority of official bodies tribunal, public officers, legislature, executive and judicial whether in Uganda or any part of the common wealth, of the Republic of Ireland or a foreign country together with public records of private documents in Uganda. Whereas section 74 of Cap 6 provides that all documents other than those specified in section 73 are private documents.

4. Proof of documents.

Section 60 of Cap 6 requires that the contents of documents may be proved by either primary or secondary evidence. However the Act goes on to provide under section 63 that primary evidence be given first and secondary evidence be tendered in certain cases where a party intending to rely on such document has proved to the satisfaction of court that the primary evidence cannot be obtained. Primary evidence is referred to as the document itself produced for the inspection of court. It is the original document that a party tenders before court. Primary evidence can there fore be referred to as the best evidence. Secondary evidence on the other hand is said to mean and include- certified copies, copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and copies compared with those copies; copies made from or compared with the original; counterparts of documents as against the parties who did not execute them; oral accounts of the contents of a document given by some person who has himself or herself seen the document.

In the proof of private document the courts will insist on the production of the original document which is the best evidence. Whereas in the case of public documents due to the inconveniences it will cause to the public body in bring to court the original documents a certified copy of that the document is the true copy of the original will be admitted by court in evidence.

5. Admission of other evidence.

The admission of secondary evidence in a judicial proceeding is only possible when the absence of the original has been satisfactorily accounted or after failure to comply with issue of notice of production as required by section 65 of cap 6. Any of the following reasons for the absence of the original document will justify the reception of secondary evidence which may be given of the existence, condition or contents of the document.

When the original is shown to be in the possession or power of a stranger not subject to court process or not legally bound to produce it and when after notice mentioned in section 65 has been given, that person does not produce it, then secondary evidence of the contents of the document is admissible under section 64(2). The authority under such circumstances is the case of Mill v Oddy where the court held that secondary evidence of documents is admissible when the original is in the hands of a stranger or a third person who is not compellable by law to produce it on the ground of privilege and refuses to do so.

When the original is destroyed or lost. Once court is satisfied that a missing document has been diligently searched for and not found or has been destroyed for example by fire, then proof of contents of that document by secondary evidence is admissible. In Brewster v Sewell a fire occurred in the plaintiff premises and the insurance company paid the claim, a fresh policy was after wards taken. Some years after the plaintiff gave evidence concerning the earlier policy, but could not produce the original. He produced evidence to the effect that a search had been made in every place in which the document if still in existence would be likely to be found, but it could not be found.

Court held that sufficient search had been made to allow secondary evidence to be given.

Secondary evidence of a written admission proving contents of a document will be admissible 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.

The same applies to a situation where the person in possession of the original document is not legally bound to produce that document and even refuse to produce it when given reasonable notice to do so. Under such circumstances court will issue subpoena duces, requiring such a person to bring the document to court.

Other impossibility or inconvenience. When the original is of such a nature as not to be easily movable, for this reason secondary evidence of the contents of the document is admissible when given of writings on walls or tombstones because in the former it is either impossible to move the wall or writing has been obliterated, and in the latter case because of either legal impossibility or physical inconvenience.

Non-production by opponent. When the original is shown or appears to be in the possession of the person to whom its sought to be proved and when after notice mentioned in section 65, that opponent does not produce it, court will admit any secondary evidence to be adduced as regards that document. This principle is illustrated in the case of Dwyer v Collins in an action on a bill of exchange the plaintiff Attorney who was called as defense witness admitted that he had the bill in court but he declined to produce it, secondary evidence of its content was allowed.

When the original is a public document as required by section 73 a certified copy of the document, but no other kind of secondary evidence will be admissible. In Uganda v Mukasa Deogratius It was held that a birth certificate as per section 72(a) (ii) and (ii) of the evidence cap 43 is a public document and it was not necessary to call the assistant registrar of births and deaths to prove its authenticity. As regards the genuineness of a public document it was stated by Byamugisha J in Khalid Walusimbi v Jamal Kaaya & Attorney General that letters of administration are public documents and presumed to be genuine under section 77 of the evidence Act Cap 43 then.

When the original of the document consists of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection then secondary evidence may be given as to the general result of the document by any person who is skilled in examination of such document and has examined them.This was illustrated in the case of Dsav v R and Chawhan v R where bank clerks where convicted for fraudulent false accounting and stealing from thee employer on evidence of a bank inspector on his inspection of the banks books of accounts. The ground of appeals was principally on the ground that neither the original accounts referred in the inspectors evidence nor copies were produce in evidence, and that since the inspectors evidence was secondary they should have been held to be inadmissible. McKisack CJ, stated that; for such evidence to be admitted under section 634(g) of Cap 43(section 64(1) (g) Cap 6) the following requirements had to be satisfied, namely;

-The witness had to be skilled in the examination of the document in question.

-The witness himself must have examined the document.

The document itself must consist of numerous accounts or other kinds of document not being capable of being conveniently examined by court.

-The secondary evidence must be for the purpose of proving the general result of the whole collection.

-The judge held ultimately that the requirements had been satisfied and that secondary evidence was rightly admitted.

6. Conclusion.

In conclusion the courts of judicature generally will require the production of primary evidence being the document itself as the best evidence of the contents or existence of a document in consideration. However in the interest of justice the courts will allow secondary evidence of the contents or as to the existence of a document to be adduced in a proceeding only upon its satisfaction that the original (primary) evidence of the document cannot be obtained by the person intending to rely on the document. Such satisfaction of the inability to produce the best evidence , which is also primary evidence can be attained by proving any of the exceptions to the production of primary evidence listed in section 64 of the Evidence Act Cap 6 as illustrated in the above discussion.

By Kabuye Isaac UCU