CHAPTER 6
EVIDENCE ACT

[PRINCIPAL LEGISLATION]

ARRANGEMENT OF SECTIONS

   Section

Title

CHAPTER I
PRELIMINARY PROVISIONS

   1.   Short title.

   2.   Application.

   3.   Interpretation.

   4.   Permissible inferences.

   5.   Presumptions.

   6.   Conclusive proof.

CHAPTER II
THE RELEVANCY OF FACTS

PART I
GENERAL

   7.   Evidence may be given of facts in issue and relevant facts.

   8.   Relevancy of facts forming part of same transaction.

   9.   Facts which are the occasion, cause or effect of facts in issue.

   10.   Motive, preparation and previous or subsequent conduct.

   11.   Facts necessary to explain or introduce relevant facts.

   12.   Things said or done by conspirator in reference to common design.

   13.   When facts not otherwise relevant become relevant.

   14.   In suits for damages, facts tending to enable court to determine amount of damages are relevant.

   15.   Facts affecting existence of right or custom.

   16.   Facts showing existence of state of mind or of body, or of bodily feeling.

   17.   Facts bearing on question whether act was accidental or intentional.

   18.   Existence of course of business when relevant.

PART II
ADMISSIONS

   19.   Admission defined.

   20.   Statements by party to suit or agent or interested party.

   21.   Admissions by persons whose position must be proved as against party to suit.

   22.   Admissions by persons expressly referred to by party to suit.

   23.   Proof of admissions against persons making them, and by or on their behalf.

   24.   Oral admissions regarding contents of documents.

   25.   Admissions made without prejudice in civil cases.

   26.   Admissions not conclusive proof, but may estop.

PART III
CONFESSIONS

   27.   Admissibility of confessions to police officers.

   28.   Confessions before magistrate.

   29.   Confession caused by inducement, threat or promise.

   30.   Confession made after removal of impression caused by inducement, threat or promise.

   31.   Relevance of information received from accused in police custody.

   32.   Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.

   33.   Confession may be taken into consideration against co-accused.

PART IV
STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES

   34.   Statement of persons who cannot be called as witnesses.

   34A.   Admissibility of certain trade or business records, etc.

   34B.   Proof by written statements in criminal proceedings.

   34C.   Proof by written statements in civil proceedings.

   35.   Relevancy of evidence given in previous proceedings.

PART V
STATEMENTS UNDER SPECIAL CIRCUMSTANCES

   36.   Entries in books of account.

   37.   Entries in public records.

   38.   Statements, etc., in maps, charts and plans.

   39.   Statement of fact in laws, Gazettes, etc.

   40.   Statements regarding law contained in books.

PART VI
EXTENT TO WHICH STATEMENT IS TO BE PROVED

   41.   What evidence to be given when statement forms part of a conversation, document, book, series of letters or papers.

PART VII
RELEVANCY OF JUDGEMENTS

   42.   Previous judgements relevant to bar a second suit or trial.

   43.   Relevancy of certain judgements in probate and other jurisdictions.

   43A.   Relevancy of judgements in criminal proceedings.

   44.   Relevancy and effect of judgements, orders or decrees, other than those mentioned in section 35.

   45.   Relevancy of judgements, etc., other than those mentioned in sections 34 to 36.

   46.   Fraud or collusion in obtaining judgement, or incompetency of court, may be proved.

PART VIII
RELEVANCY OF OPINIONS OF THIRD PERSONS

   47.   Opinions of experts.

   48.   Facts bearing upon opinions of experts.

   49.   Relevancy of opinion regarding handwriting.

   50.   Relevancy of opinion regarding existence of right or custom.

   51.   Relevancy of opinion regarding usages, tenets, etc.

   52.   Relevancy of opinion on relationship.

   53.   Grounds of opinion.

PART IX
RELEVANCY OF CHARACTER

   54.   Character in civil cases.

   55.   Good character in criminal cases.

   56.   Bad character in criminal cases.

   57.   Definition of "character".

CHAPTER III
PROOF

PART I
FACTS REQUIRING NO PROOF

   58.   Facts judicially noticed.

   59.   Facts of which court shall take judicial notice.

   60.   Facts admitted in civil proceedings need not be proved.

PART II
ORAL EVIDENCE

   61.   Oral evidence.

   62.   Oral evidence must be direct.

PART III
DOCUMENTARY EVIDENCE

   63.   Proof of contents of documents.

   64.   Primary evidence.

   64A.   Admissibility of electronic evidence.

   65.   Secondary evidence.

   66.   Proof of documents by primary evidence.

   67.   Proof of documents by secondary evidence.

   68.   Rules as to notice to produce.

   69.   Proof of signature or handwriting of person alleged to have signed or written document.

   70.   Proof of execution of document required by law to be attested.

   71.   Proof where no attesting witness found.

   72.   Admission of execution by party to attested document.

   73.   Proof when attesting witness denies the execution.

   74.   Proof of document not required by law to be attested.

   75.   Comparison of signature, writing or seal with others admitted or proved.

PART IV
BANKERS' BOOKS

   76.   Definitions of Part IV.

   77.   Mode of proof of entries in banker's books.

   78.   Proof that book is a banker's book.

   79.   Verification of copy.

   80.   Case in which banker, etc., not compellable to produce book, etc.

   81.   Court may order inspection, etc.

   82.   Costs.

PART V
PUBLIC DOCUMENTS

   83.   Public documents.

   84.   Private documents.

   85.   Certified copies of public documents.

   86.   Proof of documents by production of certified copies.

   87.   Proof of other official documents.

PART VI
PRESUMPTIONS AS TO DOCUMENTS

   88.   Presumption regarding genuineness of certified copies.

   89.   Presumption regarding documents produced as record of evidence.

   90.   Presumption regarding Gazettes, newspapers, private Acts of National Assembly and other documents.

   91.   Presumption regarding maps or plans made by authority of Government.

   92.   Presumption regarding collections of laws and reports of decisions.

   93.   Presumption regarding private documents executed outside the United Republic.

   94.   Presumption regarding powers of attorney.

   95.   Presumption regarding certified copies of foreign judicial records.

   96.   Presumption regarding books, maps and charts.

   97.   Presumption regarding telecommunications messages.

   98.   Presumption regarding due execution, etc., of document not produced.

   99.   Presumption regarding documents less than twenty years old.

PART VII
THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

   100.   Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.

   101.   Exclusion of evidence of oral agreement.

   102.   Exclusion of evidence to explain patent ambiguity.

   103.   Exclusion of evidence against application of document to existing facts.

   104.   Evidence as to latent ambiguity.

   105.   Evidence regarding application of language which can apply to one only of several persons or things.

   106.   Evidence regarding application of language to one of two sets of facts.

   107.   Evidence regarding meaning of illegible characters, etc.

   108.   Evidence of variation given by third parties.

   109.   Saving of provisions of written law as to construction of wills, etc.

CHAPTER IV
PRODUCTION AND EFFECT OF EVIDENCE

PART I
THE BURDEN OF PROOF

   110.   Burden of proof.

   111.   On whom burden of proof lies.

   112.   Burden of proof of particular fact.

   113.   Burden of proving fact to be proved to make evidence admissible.

   114.   Extent of burden of proof on accused.

   115.   Burden of proving fact especially within knowledge in civil proceedings.

   116.   Burden of proving death of person known to have been alive within thirty years.

   117.   Burden of proving that person is alive who has not been heard of for five years.

   117A.   Restriction of application of sections 116 and 117.

   118.   Burden of proof regarding relationship in the cases of partners, landlord and tenant, principal and agent.

   119.   Burden of proof regarding ownership.

   120.   Proof of good faith in transactions where one party is in a position of active confidence.

   121.   Birth during marriage and rebuttable presumption of legitimacy.

   122.   Court may presume existence of certain facts.

PART II
ESTOPPEL

   123.   Estoppel.

   124.   Estoppel of tenant or of licensee or person in possession.

   125.   Estoppel of acceptor of bill of exchange.

   126.   Estoppel of a bailee or licensee.

CHAPTER V
WITNESSES

PART I
COMPETENCY, COMPELLABILITY AND PRIVILEGE OF WITNESSES

   127.   Who may testify.

   128.   Dumb witnesses.

   129.   Privilege of court.

   130.   Evidence of and by spouses.

   131.   General competency of spouses in civil proceedings.

   132.   Privilege relating to official records.

   133.   Information regarding commission of offences.

   134.   Professional communication.

   135.   Privilege of interpreters and advocates' clerks.

   136.   Privilege not waived by volunteering evidence.

   137.   Confidential communication with legal advisers.

   138.   Production of title-deeds of witness not a party.

   139.   Production of incriminating documents.

   140.   Production of documents which another person having possession could refuse to produce.

   141.   Witness not excused from answering on ground that answer will incriminate.

   141A.   Evidence in offences of receiving.

   142.   Accomplice's competence as witness.

   143.   Number of witnesses.

PART II
EXAMINATION OF WITNESSES

   144.   Order of production and examination of witnesses.

   145.   Court to decide on admissibility of evidence.

   146.   Examination of witnesses.

   147.   Order and direction of examinations.

PART III
QUESTIONING OF WITNESSES

   148.   Cross-examination of person called to produce a document.

   149.   Witnesses to character.

   150.   Meaning of leading question.

   151.   Leading questions in examination-in-chief and re-examination.

   152.   Leading questions in cross-examination.

   153.   Evidence as to matters in writing.

   154.   Cross-examination on previous statements in writing.

   155.   Questions lawful in cross-examination.

   156.   When witness to be compelled to answer.

   157.   Cross-examination of accused person.

   158.   Court to decide when questions shall be asked and when witness compelled to answer.

   159.   Question not to be asked without reasonable grounds.

   160.   Indecent and scandalous questions.

   161.   Questions intended to insult or annoy.

   162.   Exclusion of evidence to contradict answers to questions testing veracity.

   163.   Discretion to allow cross-examination of own witness.

   164.   Impeaching the credit of a witness.

   165.   Evidence tending to corroborate evidence of relevant fact admissible.

   166.   Former statements of witness may be proved to corroborate later testimony as to same fact.

   167.   What matters may be proved in connection with proved statement relevant under section 34 or 35.

PART IV
REFRESHING MEMORY AND PRODUCTION OF DOCUMENTS

   168.   Refreshing memory.

   169.   When witness may use copy of document to refresh memory.

   170.   Expert may refresh his memory.

   171.   Testimony to facts stated in document although facts themselves not specifically recalled.

   172.   Right of adverse party relating to writing used to refresh memory.

   173.   Production of documents.

   174.   Giving, as evidence, of document called for and produced on notice.

   175.   Using as evidence of document production of which was refused.

   176.   Power of court to put questions or order production.

PART V
QUESTIONS BY ASSESSORS

   177.   Power of assessors to put questions.

CHAPTER VI
IMPROPER ADMISSION AND REJECTION OF EVIDENCE

   178.   No new trial for improper admission or rejection of evidence.

CHAPTER VII
MISCELLANEOUS PROVISIONS

   179.   Construction of other laws.

   180.   [Repeal and savings.]

CHAPTER 6
THE EVIDENCE ACT

An Act to declare the law of evidence.

[1st July, 1967]
[G.N. No. 225 of 1967]

Acts Nos.
6 of 1967
5 of 1971
9 of 1980
4 of 1998
3 of 2011
6 of 2012
13 of 2015

CHAPTER I
PRELIMINARY PROVISIONS (ss 1-6)

1.   Short title

   This Act may be cited as the Evidence Act.

2.   Application

   Except as otherwise provided in any other law this Act shall apply to judicial proceedings in all courts, other than primary courts, in which evidence is or may be given but shall not apply to affidavits presented to any court or officer not to arbitration proceedings.

3.   Interpretation Acts Nos. 19 of 1980 s. 3; 3 of 2011 s. 4; 13 of 2015 s. 42">

   (1) In this Act, unless context requires otherwise–

   "confession" means–

   (a)   words or conduct, or a combination of both words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offence; or

   (b)   a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence; or

   (c)   a statement containing an admission of all the ingredients of the offence with which its maker is charged; or

   (d)   a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person making the statement has committed an offence;

   "court" includes all judges, magistrates and assessors and all persons, except arbitrators, legally authorised to take evidence;

   "document" means any writing, handwriting, typewriting, printing, photostat, photography, computer data and every recording upon any tangible thing, any form of communication or representation including in electronic form, by letters, figures, marks or symbols or more than one of these means, which may be used for the purpose of recording any matter provided that recording is reasonably permanent and readable;

   "documentary evidence" means all documents produced as evidence before the court;

   "evidence" denotes the means by which an alleged matter of fact, the truth of which if submitted to investigation, is proved or disproved; and without prejudice to the preceding generality, includes statements and admissions by accused persons;

   "fact" includes–

   (a)   any thing, state of things, or relation of things, capable of being perceived by the senses;

   (b)   any mental condition of which any person is conscious;

   "fact in issue" means any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows;

   "husband" or "wife" means the spouse of a marriage which is valid according to the written law or customary laws of the United Republic;

   "oral evidence" means all statements which the court permits or requires to be made before it by witnesses being physically present at the time of making the statement or by use of other means of communication including teleconference or video conference, in relation to matters of fact under inquiry;

   "police officer" means a member of the Police Force of or above the rank of constable;

   "relevant" in relation to one fact and another, means the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

   (2) A fact is said to be proved when–

   (a)   in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists;

   (b)   in civil matters, including matrimonial causes and matters, its existence is established by a preponderance of probability.

4.   Permissible inferences

   Whenever it is provided by this Act or any other written law that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or the court may call for proof of it.

5.   Presumptions

   Wherever it is provided by this Act or any other written law that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

6.   Conclusive proof

   When one fact is declared by this Act or any other written law to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

CHAPTER II
THE RELEVANCY OF FACTS (ss 7-57)

PART I
GENERAL (ss 7-18)

7.   Evidence may be given of facts in issue and relevant facts

   Subject to the provisions of any other law, evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue, and of such other facts as are hereinafter declared to be relevant, and of no others.

8.   Relevancy of facts forming part of same transaction

   Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and places.

9.   Facts which are the occasion, cause or effect of facts in issue

   Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue or which or constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transactions, are relevant.

10.   Motive, preparation and previous or subsequent conduct

   (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

   (2) The conduct of any party, or of conduct any agent of any party, to any suit or proceeding, in reference to such suit or proceeding or in reference to any fact in issue or relevant thereto in the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

   (3) When the conduct of any person is relevant, any statement made by him or in his presence and hearing which affects such conduct is relevant.

   (4) The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this provision shall not affect the relevancy of statements under any other section of this Act.

11.   Facts necessary to explain or introduce relevant facts

   Facts necessary to explain or introduce a fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted are relevant in so far as they are necessary for that purpose.

12.   Things said or done by conspirator in reference to common design

   Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons referring to or in execution or furtherance of their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

13.   When facts not otherwise relevant become relevant

   Facts not otherwise relevant are relevant–

   (a)   if they are inconsistent with any become fact in issue or relevant fact; or

   (b)   if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

14.   In suits for damages, facts tending to enable court to determine amount are relevant

   In suits in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant.

15.   Facts affecting existence of right or custom

   Where the existence of any right or custom is in question, the following facts are relevant–

   (a)   any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence;

   (b)   particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.

16.   Facts showing existence of state of mind or of body, or of bodily feeling

   (1) Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill will or good will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.

   (2) A fact relevant within the meaning of subsection (1) as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.

   (3) Where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of subsection (1), the previous conviction of such person shall also be a relevant fact.

17.   Facts bearing on question whether act was accidental or intentional

   When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

18.   Existence of course of business when relevant

   When there is a question whether a particular act was done, the existence of of any course of business, according to which it naturally would have been done, is a relevant fact.

PART II
ADMISSIONS (ss 19-26)

19.   Admission defined Act No. 13 of 2015 s. 43">

   An admission is a statement, oral, electronic or documentary, which suggests any inference as to a fact in issue or relevant fact and which is made by any of the persons and in the circumstances hereinafter mentioned.

20.   Statements by party to suit or agent or interested party

   (1) Statements made by a party to the proceeding or by an agent to any such party, whom the court regards in the circumstances of the case as expressly impliedly authorised by him to make them, are admissions.

   (2) Statements made by parties to suits, suing or sued in a representative character, are not admissions unless they were made while the party making them held that character.

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