paper on judicial notiice

8/16/2019 paper on judicial notiice

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JUDICIAL NOTICE

The general rule to prove is that all relevant facts must be

proved. This requires statements of witnesses, admissions and

confessions, productions of documents so that if the plaintiff or the prosecutor fails to prove an essential fact, then his opponent

succeeds on.

In criminal case, the opponent will make a submission of no

case to answer and he is acquitted but in civil matters, it will be

a submission of there is no case to answer.

There are two exceptions to the above general rule of proof.

There is no need to give evidence to prove existence or non-existence of relevant facts or facts in issue which

judicial notice is taken- section 55

acts which are formall! acquitted- section 5"

What is judicial notice?

#udicial notice is a matter which is so notorious that it is taken

generall! as an existing fact.

$ord %ummer in the case of common wealth shippingepesentati!e ! "# and O# $anch se!ices %&'()* AC &'&+

(&( defined judicial notice as&

'facts which a judge or a magistrate ma! be called upon

either from his general knowledge of them, or from

inquiries to be made b! himself for his own information

from sources to which it is proper for him to refer(

)hen court takes judicial notice of a fact, it will find that, that

fact exists although the existence of a fact has not !et been

established b! bringing testimon!. or example, if the date of

*ganda+s independence is in issue or is a relevant fact, !ou

don+t need witnesses to testif! that *ganda got independence

on th ctober /0, court takes judicial notice of that fact.

There are two classes in which court will take judicial notice of

facts&

acts which a judge will be called upon to receive and

act upon from his general knowledge of a fact or from

inquires he makes for himself for his own information

and from trusted sources. The part! who asks court to

take judicial notice of a fact, has the burden to prove

that the matter is so notorious and should therefore not

be a subject of dispute among reasonable men or that the

matter is capable of immediate accurate demonstration b! resort to other sources of undisputed evidence.

1ccording to section 55 of the evidence 1ct, it is provided that

no fact of which court takes judicial notice needs to be proved

and the other section 5/ is an example to which court takes

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judicial notice for example laws of *ganda, proceedings of

parliament and other law making bodies, sells of government

of *ganda, names of people occup!ing public offices, national

flags of sovereign states, geographical divisions of the world,

divisions of time, public festivals, holida!s notified in aga2ette, officers of the courts of law, rules of the land and sea,

all the above, court takes judicial notice

*nder section 5/34, the person who wishes to rel! on judicial

notice has got the burden. In the case of sale ! , &'-. (.

EACA (& it was held that court must take judicial notice of the

laws enacted in 6en!a as long as a notice was published in the

ga2ette of that order.

In /aluma ! , &'-- 0(1 EACA )23 , it was held that when an

indictment alleges that a particular place is where an offence

was committed and no challenge is raised, then court ma! take

judicial notice that the charge is situate in that place mentioned.

There are matters of common knowledge and these need not be

proved because the! are generall! known for example if the!

are notorious for example practises in a societ! that evolves

over time.

The real test for judicial notice is the notoriet! rule. nce a fact

in issue is so notorious, then, the court will most probabl! take

judicial notice of it.

In N4e ! Ni5lett %&'2-* EA 6 judicial notice was taken of the

fact that cats are kept for domestic purposes.

In the case of 7upta ! continental 5uildes LTD 0&'681 9L,

8), it was held that, one who seeks judicial notice has also to prove that the matter is capable of immediate and accurate

demonstration b! resort to readil! accessible sources of

indisputable accurac!.

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CO,,O$O,ATION

The term simpl! refers to independent testimon! which tends

to support or confirm other evidence alread! adduced at the

trial as true and reliable.

7rogretic evidence is evidence which tends to8888888

e.g. in a charge of theft, other evidence is given that the theft

was seen breaking into a house to steal and was caught with

stolen propert!, in murder, the weapon used is such other

evidence

There are certain t!pes of cases in which court will not convict

an accused person or will not return judgment in one+s favour

unless evidence being adduced is corroborated.

Therefore it is the prosecution that has the burden to prove the

independent testimonies. In the case of , ! $as/e!ille &'2& (

9$ 2-8, the judge defined corroborating evidence as such

evidence corroboration must be independent testimon! which

affects the accused b! connecting or tending to connect him to

the crime. It is evidence which implicates him and which

confirms whit some material particular not onl! that the crime

has been committed but also that it is the prisoner whocommitted the crime. It is supportive evidence.

In that case, 9askerville was charged with gross indecenc!

with two bo!s. The onl! evidence of his charge was evidence

of the two bo!s but the! were accomplice in the crime and it is

a judicial requirement the judicial %hall be corroborated before

it can be used to convict the accused. The accused appealed on

ground that the evidence of the two bo!s had not been

corroborated.

In , ! /il5oune, it was held that corroborative evidence is

evidence which tends to confirm other evidence produced at

the trial.

It is additional evidence which renders it probable that the

stor! of the witness is true and that it is reasonabl! safe to act

on it.

It is independent and affects the accused b! connecting or

tending to connect him with the crime and confirming in some

material particular not onl! that the crime has been committed

but also that it is the accused who committed it.

:orroborative evidence need not corroborate the whole

testimon! produced at the trial. It is enough if it corroborates a

material particular of such testimon! e.g. in a rape case, a

medical report b! a doctor stating that it examined an!one of

the parties can be taken as corroborative evidence. %uch other examples ma! be torn garments, scratched bod! fore-instance.

Therefore the main elements of corroborating evidence are&

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It is independent testimon! connecting or tending to

connect the accused with the crime. It is supposed to

check the other testimon! adduced at the trial to test its

trustfulness.

It need not corroborate the whole of the evidence produced at the trial. It is enough if it corroborates a

material particular.

If two witnesses both require corroboration, the! cannot

do so for example two children, two thieves, because

each will incriminate or accuse the other.

In Totu ! , &')3, it was held that two, whose evidence

requires the same, cannot corroborate each other.

The rational for corroboration is to test the real liabilit! of theaccused and to support it %o that the trial judge can feel safe to

convict an accused. therwise he ma! acquit if there is no

corroboration.

%econdl!, there are certain cases where there are no

independent witnesses especiall! on sexual offences. There

will not be a person to testif! whether or not there was consent.

In such a case, then court is faced with a challenge of returning

a verdict basing on the oath of the complainant, testif!ing thatshe was raped but also the oath of the accused that the woman

consented. That challenge necessitates corroboration.

:ituations unde which coo5oation ma45e e;uied

%ection 44 of the ;vidence 1ct states that&

%ubject to an! written law enforced, there is no particular

number of witnesses required to prove an! fact, even one

witness is enough. The forgoing rule makes provision for the

requirement of corroboration.

There are two main categories of evidence which require

corroboration.

The first consists of situations where corroboration is

required as a matter of law i.e. where there is express

statutor! provisions that such evidence shall becorroborated otherwise the court shall not rel! on it.

It consists of situations where corroboration is required

as a matter of judicial practice i.e. the courts in their

usual practise have found it necessar! that such

evidence must be corroborated.

:ituations whee coo5oation is e;uied 54 statute

Treason contrar! to section 04 of the penal code 1ct, court

cannot convict on one witness.

%edition contrar! to section


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>riving recklessl! contrar! to ?oads and %afet! 1ct

1pplications for affiliation under the childrens+ 1ct although

this can be done awa! with, if parties opt for a >@1

The unsolved evidence of a child must be corroborated.

Coo5oation as a matte o< judicial pactice

The court in deciding case, found it prudent or wise to rel! on

certain evidence and have made it a requirement for

corroboration e.g. accomplice evidence

In Da!is ! D"" &'-3 AC )68, accomplice was defined as&

"aticipes ciminis i.e. participant in the crime, aids

and abates. 1 receiver of stolen propert! at a trial is an

accomplice.

7arties to other crimes alleged to have been done b! the

accused. )hen evidence of such crimes is got on the

ground that it has a tendenc! to prove more than a mere

criminal propensit! that is therefore an accomplice is a

participant in the commission of a crime.

1ccording to section 40, an accomplice shall be a competent

witness against an accused and it is not illegal merel! because

it proceeds upon the uncorroborated evidence of an

accomplice. Therefore accomplice evidence is acceptable

without corroboration but courts argue that such evidence is

not reliable enough.

The rational is one that the accomplice will minimise this rolein the crime and exaggulates that of the accused. Therefore

accomplice evidence ma! not be reliable because of the desire

to save this neck.

1n accomplice is likel! to tell a lie to and shift the guilt to the

accused rather than him-self.

1n accomplice as a co participant in the crime is not likel! to

value the oath.

1n accomplice usuall! testifies because of the particular

promise made to him that he will be pardoned if he cooperates

with the state or that he will be treated lenientl! if he gives

awa! information.

Therefore courts have concluded that an accomplice is a

witness of the most infamous kind, ver! unreliable and the

veracit! of his evidence must be checked through

corroboration.

1nother situation is in se=ual o


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the dangers of acting on uncorroborated evidence of the

complaint alone but having done so, he ma! convert in the

abuse of corroboration if he is satisfied that evidence is the

truth.

If there is no warning given, the conviction will be set aside on

appeal unless an appellant court is satisfied that there was no

miscarriage of justice.

The desire for corroboration was or rose because courts were

faced with complex ps!chological situations which ma! not

necessar! be true. The required corroboration comprises

ph!sical signs of resistance b! complaint, torn garments,

bruises on the bod!, distressed condition of complainant,

medical report.

In Eia Ngo5i ! , , @gobi raped a girl and infected her with a

viral disease. n medical examination, the hand of @gobi was

established that both had the same disease. The evidence of

viral disease corroborated the girl+s stor! and had the tendenc!

to connect him to the same. It was held that the accused had

the same viral disease with the girl was corroborative of the

girl+s complaint that the accused had raped the girl.

Con Uganda &'26 EA 83#

E!idence o< a child

If a child gives sworn testimon! on oath, it should be

corroborated. In Oloo so 7aii > , &'2. EA &6( , a judge

relied on evidence of a 0 !ear old child to convict the child for

murder. Ae did not warn himself of the need to corroborate the

child+s evidence and the accused appealed on this ground. It

was held that the judge erred to rel! on the uncorroborated

evidence of the child. The conviction was set aside.

The rationale for this corroboration is that children are

subjective and eas! to coach. The! do not understand the dut!

of sa!ing the truth. Their power for memor! is small, as well as

their observation. Therefore the! are not reliable.

1s a court, if one wants to rel! on evidence of a child, a !oie

Die has to be conducted. It is a trial with in a trial of a child to

test whether it understands and appreciates the nature of the

case.

Identi


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fast speed that creates possibilit! for the witness to make a

mistake in identif!ing the accused.

The courts have therefore found it wise to warn themselves

against convicting against such evidence without corroboration

In A5dalla $i!e/o 0&'-)1 (. EA, it was held that where

there are conditions identif!ing correct identification, the court

should warn itself that the evidence whether circumstantial or

direct pointing to the guilt of the accused is necessar! before it

can be reasonabl! concluded that the evidence of a civil

witness identif!ing the accused is free from the possibilit! of

error and hence the need for corroboration.

In ,oia ! , &'2' EA -8), the trial court held that the judgeshould warn himself against using the identification evidence

of a single witness.

In Na5udee ! Uganda &'6' @C$, the court laid down thee

conditions which a judge should look for before rel!ing on the

evidence of one witness who is allegedl! to have identified that

accused when the conditions of visual identification were

difficult.

The court should ask itself if there was enough light and

what sort of light.

)hether the glace on the suspect b! the witness, was a

mere fleeting glance or a glance for long e.g. seeing the

witness fleeing awa! from the scene of crime shows that

the witness did not see for long.

The judge should ask himself whether the witness knew

the accused before the particular incident so that it was

eas! to identif! the person e.g. the height, si2e,completion of skin.

Therefore, the categorises of cases which require

corroboration is open.

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CO"ETENCE AND CO"ELLA$ILITB O

WITNE::E:

:ompetence refers to the capacit! to give evidence in court.

@ot all individuals have the capacit! to give evidence e.g.

:hildren, lunatics, senile people

:omparabilit! refers to where a particular witness can be

subject to compulsor! process of court to induce him to testif!

i.e. can a witness summoned b! a court to testif! and if he

refuses or disobe!s a court order summoning him, can he be

arrested and brought to testif! or pushed to contempt of court.

It is that a witness cannot refuses to appear in court to testif! or

to answer questions put to him on a particular relevant fact or

fact in issue.

The general principle is that not all competent witnesses are

also compellable because some enjo! privileges and cannot be

compelled to appear in court to testif! e.g. presidents,

diplomats, law!ers with regard to their professional occupation

and in regard to their clients, doctors to patients, spouses,

Competenc4

The general rule is that all people are competent to testif!

unless the! suffer from some disabilit! e.g. if the! are !oung ,

senile, insane, which state renders them incapable of

understanding questions put to them during the trial or giving

rational answers to them.

:ection &&6 provides that all persons are competent to testif!

unless court considers that the! are prevented from

understanding questions put to them or giving rational answers

b! tender !ears, senile, disease of bod! or mind or an! other

case of similar kind.

:ompetenc! in civil cases- section &(&

@o civil proceedings parties to the suit and husband and wife

of an! part! to the suit shall be competent and compellablewitnesses.

@iji ! modessa 0&'261 EA 6(3

In criminal cases, an accused is a competent witness but not a

compellable witness. Ae ma! be a witness onl! on his own

matter B section &&. CA

>umbCdeaf witnesses

These of themselves do not render incompetence unless the

witness is not capable of understanding questions put to them

or giving rational answers to the questions. %o the! can write

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their testimon! or the! can testif! through an interpretor who

can understand signs. That person can be sworn in as an

interpretor. section &&8

In @amisi so salun &'-& EACA (&6 the witness was deaf and

dumb, could not speak and hear but she had a sister who could

understand the sound and noises she made. The trial magistrate

allowed the evidence being given b! the witness and the sister

took an oath as an interpretor. The accused challenged this

evidence. It was held that such a witness was competent to act

the wa! she did although in the instant case, the method of

interpretation was prude, she should not have been allowed to

testif!.

;vidence of spouses

%pouses are competent to testif! to each other but are not

compellable. :ection &(. EA

*nder the law of privilege, confidential information between a

couple during the subsistence of their marriage is privileged

unless the fact in issue concerns domestic violence, incest,adulter!, rape, indecent 1ssault

The rational is that except for the spouse, it would be ver!

difficult to get evidence in such circumstances because man!

of these events happen in private.

:hildren of tender !ears

1 child of tender !ears ma! not be competent b! reason of his

age if he does not understand questions put to him. :ection &&6

There is no statutor! definition of child of tender !ears but the

locus cluscus is the case of /i5agen4i ! , &'2' EA '(#

The accused was convicted of murder, evidence against him

was his two sons aged 0 to 4, and to = !ears. n appeal,

he challenged there evidence sa!ing these were children of

tender !ears and that therefore, there evidence was

inadmissible under the 1ct. :ourt held that a child of tender

!ears refers to an! child of the average apparent age of <

!ears and whether or not a particular child is of tender !ear,

will depend on the good sense of judgement.

This was followed in the case of Omu/ono and anothe !

Uganda @C &'&. :ourt held that a child of tender !ears in an!

special circumstances means the child of the average and

apparent age of < !ears and the court+s good sense of

judgement.

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The foregone cases means that well as < !ears is the bench

mark, not ever! child of the apparent age of < is of tender

!ears.

The rationale is&

:hildren do not understand the nature and purpose of

ath.

:hildren are ver! eas! to coach and are suggestible.

The! do not have sufficient intelligence to observe

matters urgentl! and give reliable answer to questions

asked and so the! are not reliable.

)hen receiving child evidence, the court must go through a

special procedure called a voire >ire.

1 voire dire is an attempt b! the court to determine if the child

understands in order to be sworn or if has sufficient

intelligence to give rational answers. Therefore usual questions

to ask include, name and age of child, names of parents,

residence, telephone number, whether the child goes to church

or mosque, t!pes of food the child eats, places last visited if

an!. rom the answers, the court can assess and give an

opinion that the child will give rational answers or not.

Their evidence must be corroborated. If the child does not

understand the nature of the ath, he can be allowed to testif!

not on ath as long as he is possessed of sufficient evidence in

court+s opinion so that the evidence is reliable and there must

be corroboration.

@9D the testimon! of a child of tender !ears without a voire

dire will certainl! be quashed.

Compella5ilit4 o< witnesses

The general rule is that all persons are compellable to testif! on

matters asked them even if such matters tend to incriminated

them- section &)

1lthough there are exceptions to the general rule above in

public polic! and children

;xceptions&

7rivilege refers to an extra ordinar! right or power of comit!

attached to a person b! virtue of their status for example the

president, ambassador. Therefore competent witnesses are

excluded from testif!ing on the ground of privilege.

T4pes o< pi!ilege

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7rivate privilege attaches to certain individuals in their

capacit! e.g. husband and wife enjo! private privilege

Esection &(. 0a1 EAF. This is to protect confidentialit!

of relationships but the parties must be legall! married

not cohabiting. The communication must be with in of the marriage.

7rofessional privilege enjo!ed b! professionals in that

capacit! for example advocates i.e. section (-. 1n

advocate cannot be compelled to disclose

communications between him and client unless with his

or her client+s consent. therwise there wasn+t, clientcould not disclose it.

*nder section &(2, privilege is extended to clerks of

advocates although there are exceptions where the

communication is for an illegal purpose or to perpetuate

a fraud.

@9D the professional privilege under the evidence 1ct seems to

be limited to onl! advocates and not to other professionals.

#udicial privilege Esection &&'F. Gagistrates and judges

are privileged from being compelled to answer

questions with regard to their conduct in court.

7ublic privilege. This protects < main t!pes &

a. fficial records and public records. %ection 00

;1

b. fficial communications between public officers,

public emplo!ees. %ection 04, public informers.

%ection 0uncan+s case, the judge held that the document relevant to

production would not be produced if the public interestrequires that such document be revealed in open court. If the

government official objects, that should be treated as

conclusive.

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The case of :onwa! was of a different view. It held that the

claim to privilege b! the government is not conclusive and that

court must establish whether such claim was made in good

faith or has reasonable ground to support it. If the court feels

that the disclosure of such information would not seriousl!affect then that information should be disclosed

The court can receive evidence in camera awa! from public or

it can severe the relevant part of evidence and leave the rest un-

tempered with. The same was portra!ed in the case of Re

Grosvenor Vol 2 1962 ch 1210 where $ord >ening held that

the claim to privilege cannot be conclusive. It must be made in

good faith and with reasonable ground that the disclosure will

not hurt the public interest otherwise the court will override theclaim to privilege in the interest of justice. The fore gone cases

indicate the courts have the residual powers to question a claim

to privilege.

DOCUENTA,B E>IDENCE

Concept o< a document

*nder section 03b of the evidence 1ct, a document is an!

matter expressed or described upon an! substance b! means of letters figures or marks or b! more than one of those means

intended to be used or which wa! be used for the purpose of

recording that matter. It includes all documents produced for

court+s inspection.

sborne defines a document as something on which things are

printed or inscribed and which gives information. This is

an!thing written capable of giving evidence therefore a writing

on stone, t-shits, cds, recordings of music, dvds are alldocuments as long as the accurac! of recordings can be proved.

In the era of technological advancement, mails, whatsapps,

blogs, tweets are all documents

?;D in the case :alan dean ! , 0&'221 EA (6(

Therefore, the form that a document takes keeps changing with

advancement with societ!.

>ocumentar! evidence constitutes real and testimonial

evidence. ?eal evidence is that one supplied b! material

objects produced for the court to inspect

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ain classi


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public document, it is enough if one furnishes a certified cop!

of the document for example a land title is to be certified b! the

registrar of titles, memorandum and articles of association

certified b! the registrar of companies, but with private

documents, the original document must itself be produced for court to inspect

c# "ima4 and seconda4 documents

:ection 2. provides that the contents of a document must

either be proved b! primar! or secondar! evidence

1ccording to section 2&, primar! evidence is the documentitself, to original is produced for court to inspect. If it is a

contract, the original contract signed b! the parties, therefore

even documents done in counter parts are original if the! are

made b! one uniform process.

D"" ! Nathan &'22 EA &)

:ection 2( provides that secondar! evidence includes&

certified copies

copies made from original b! mechanical process

copies made or compared with original

counterparts of documents as against the parties who

did not execute them ral accounts of the contents of a document who

himself saw the document.

"o!e o< e=ecution o< a document po!e o< genuineness

9efore a document is admitted in evidence, it must first be

proved for the court to be genuine i.e. it must prove first to be

what it purports to be and not a forger!. It must be

authenticated therefore a part! tendering evidence of a

particular document or the part! intending to rel! on a

document must first prove it to be genuine or authentic,

otherwise court will not admit it.

-irst rule

7rove of genuineness of a document

-secondar! rule

The part! must offer the best evidence of the document i.e. it

must produce the evidence itself because primar! evidence is

the best evidence.

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-Third rule

This consists of the rule of the parole evidence rule that no

extrinsic evidence is admissible to prove the contents of the

document except the document itself.

The foregone are the cardinal rules of documentar! evidence.

The question then becomes or is, how is the document proved

genuinel!H This will depend on the t!pe of document for

example&

*nder section 6-, certified copies of public documents are

presumed genuine. The! must be certified b! responsible public officer who has custod! of those documents.

7rivate documents required b! law to be attested 3 section 26.

If a document is required to be attested, it shall not be allowed

in evidence until one attesting witness has been called to prove.

Aowever, there is an exception for example where no attesting

witness can be found or died or has gone to another jurisdiction, recourse is had to section 28 then. It must be

proved that the attestation is in his right and the signature of

the person executing the document is in the handwriting of that

person. This section will appl! where the attesting witness

cannot be found to testif!, the handwriting of atleast one

witness must be genuine and thirdl! the handwriting of the one

who signs is also genuine.

The other alternative is to bring someone expert inhandwriting. %ection


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