Hearsay

Hearsay refers to testimony given in court by a person other than the one who perceived it.
As a general rule hearsay is inadmissible. For you start from the premise that reporting in
court what you heard another person say is not going to be admitted in court as evidence.
And this draws from section 63 of the Evidence Act, which explicitly provides that oral
evidence must be direct. So you are not allowed to go to court to say this is what another
person said. Oral evidence must be direct. And when you are dealing with documents it is
going to be required that the author of the document presents that document in court. And
the reason that we are saying that the author of the document should come to court is so that
if you want to cross-examine them you have the opportunity to cross-examine them.

The rule against hearsay is stated as follows: ”A statement made by a person not called as
a witness which is offered in evidence to prove the truth of the fact contained in the
statement is hearsay and it is not admissible. If however the statement is offered in
evidence, not to prove the truth of the facts contained in the statement but only to
prove that the statement was in fact made it is not hearsay and it is admissible”- Justice
De Silva

So essentially then what determines whether hearsay is hearsay or not is going to be pegged
around the purpose for which the statement is given. If you are giving the statement to prove
the truth of the contents of the statement, you are giving the statement made by another
person seeking to get people to believe that which is contained in the statement, that is
hearsay. But on the other hand if you state what another person said, not to prove the truth
but to establish that those people actually made the statement, that is not hearsay. Because
essentially then what you are doing is just reporting what another person said and you did
perceive of what that other person said because you heard them. Is this clear?

When you are using the statement to prove that the statement was made, here you are
attesting to something that you perceived of because you heard it had taken place. But where
you are giving a statement to prove the truth of what was contained in the statement which
somebody else had perceived of, that is hearsay. So for instance if a person comes and says,
James told me Peter stole the till from the bank. If you are trying to prove the fact that Peter
stole from the bank then you can see there that you will not have direct perception of what
happened. If in fact you did hear James say that Peter stole, you perceived of that fact
because you did hear James say that Peter stole. Is that clear?

1
The case that you should read that concerns this rule of hearsay is the case of Subramanium
v Public Prosecutor (1956) WLR 965. And the facts of this case were as follows: The
appellant was charged and convicted of being in possession of firearms without lawful
excuse. In his defence, he asserted that he was acting under duress in consequence or a
result of threats uttered to him by Malayan terrorists. When he attempted to state the
contents of the threats, he was overruled by the judge. He appealed against conviction
arguing that the judge should actually have listened to what the import of the threat was.
And of course the judge would have argued that if he was allowed to say what the terrorists
had told him that would be hearsay. The court of appeal held that the conviction had to be
quashed because what the terrorists told the appellant should have been admitted as original
or direct evidence. It would have shed light on subsequent actions of the appellant.

So essentially here what the court is saying is that the appellant should have been allowed to
utter the threat because they would not have been threatening-may be he was told if you
don’t fire the firearm we will kill your mother. So the fact that the statement was uttered is
one thing, but the truth of what was in the statement is another thing. Whether the terrorists
had the capacity to kill his mother or whatever else they threatened to do is not what we are
seeking to hear. What we are seeking to find out is whether a reasonable person would have
behaved in the same way as the appellant did in the circumstances. And you should note in
this case the statement I was reading to you on what is hearsay and what is not hearsay was
stated. In the judgment of Justice De Silva at page 959 to 970. That is where that statement
that we are talking about, what is and what is not hearsay is stated by this particular judge:

”A statement made by a person not called as a witness which is offered in evidence to prove
the truth of the fact contained in the statement is hearsay and it is not admissible. If however
the statement is offered in evidence, not to prove the truth of the facts contained in the
statement but only to prove that the statement was in fact made it is not hearsay and it is
admissible”

The other case that we should look at getting to what is hearsay is the case of Myers v DPP
1964 2 All ER 881. This is a case you must read. The appellant in this case was charged and
convicted of receiving a stolen motor vehicle. He was in the business of buying wrecked
motor vehicles for repair and resale. The chief prosecution witness was the person in charge
of the records department of the relevant motor vehicle factory. He testified that every time
that a car was manufactured a workman would note down the engine number and the chassis
number of the car amongst other details and these would be marked on some card. He also
testified that the cylinder head number would be indelibly struck on the cylinder head block
so as to be inerasable. The card would then be microfilmed and stored. At the trial the
microfilms were produced on oath by the witness and schedules were prepared from this
microfilm. The schedules showed that the cylinder block numbers of the car in question
belonged to the car allegedly stolen. The appellant was convicted on the basis of this
evidence. The court of appeal affirmed the conviction and the appellant appealed to the
House of Lords. The House of Lords held that the trial court and the court of appeal
improperly admitted hearsay evidence in the form of the microfilm and Lord Reid at page
884 stated: “The witness would only say that a record made by someone else showed that if

2
the record was correctly made a car had left the workshop bearing three particular numbers.
He could not prove that the record was correct or the numbers which it contained were in
fact the numbers on the car when it was made.”

Do you see the argument here? That essentially the basis of the microfilm was not
something that the witness could testify to because he did not put in the particular entry. He
did not actually author the document. Remember we said by dint of section 63 of the
Evidence Act, the person that authors the document should produce that document. So here
the vehicle had left the workshop with some numbers. Those had now been reduced into
microfilm and you have a third person seeking to produce that as evidence. And essentially
what the court is saying here is that the only thing the witness can say is that some record
had been made of a car that left with some numbers. But he could not actually vouch for the
veracity of the truth of what was contained in those documents. And for that reason, that
was hearsay. This is why we are saying the House of Lords said the trial court and the court
of appeal had improperly admitted hearsay evidence. And because this became a bit
technical, Lord Reid ends his statement by saying:

”This is a highly technical point but the law regarding hearsay evidence is technical and I
would say absurdly technical”

The other case that it would be a good thing to look at just to illustrate how hearsay presents
itself, is the case of Patel v Comptroller of Customs [1965] 3 All ER 593. The appellant here
imported from Singapore into Fiji some coriander seeds shipped in bags. He correctly
engrossed (filled) the customs import entry form and on investigation at arrival five bags of
what he had imported were found to be contained in within another outer bag. So essentially
here you have double bagging. The outer bag of these five bags was marked with the
appellant’s trade name but it had marked on it “Produce of Morocco”. In the important entry
form the appellant had filled that the coriander was a product of India. So in respect of the
five bags that had “Produce of Morocco”, the appellant was charged and convicted in
making a false declaration in a customs import form, on a customs import entry. And we are
saying that he had stated that the seed originated from India when in fact it originated from
Morocco.

On appeal, it was held that the evidence of the writing on the bag was inadmissible. It was
hearsay. And this was because the court could not ascertain that in essence the coriander
seed had actually come from morocco even though the bags were marked “Produce of
Morocco”. There were actually saying nobody knew who and when those markings on the
bags, Produce of Morocco, were made. And essentially then nobody could speak to them
testifying to the fact that the particular coriander seed had originated from Morocco. So
they could not be the basis of conviction for making a false entry because the person who
wrote them could not be called to vouch for the truth.

The other case that would illustrate the same point is Junga v R (1952) AC 480 (PC). The
accused was charged and convicted with the offence of being armed with the intent to
commit a felony. The police witness gave evidence at the trial, saying that they had been
told by a police informer of the alleged attempted offence. The informer was not called to

3
give evidence and his identify was not revealed. The accused was convicted. On appeal it
was held that the trial magistrate had before him hearsay evidence of a very damaging kind.
Without the hearsay evidence the court below could not have found the necessary intent to
commit a felony and that being the case the Court of Appeal allowed the appeal against
conviction. Given that here was hearsay evidence, you didn’t call the informer who would
have actually given first hand knowledge of the fact that led to the conviction of this person.
And that being the case, the Court of Appeal says that in all fairness the conviction should
be quashed.

Another case is the case of Tenywa v Uganda (1967) EA 102(U). The accused was accused
of having stolen a bicycle. The bicycle was seized by police officers acting on this
information. On examination the bicycle was found to have a forged number plate. The
accused was convicted of the offence but appealed and on appeal it was held that the police
report from Kampala suggesting that the original number on the bicycle was altered was
hearsay. It should not have been admitted. Because essentially there was nobody to say this
was the number. When you say there was a fake number on the bicycle you are basically
saying that it is not the number that was on it, so you should have a person to testify to what
was actually the original number. But just to say that it has been changed, even saying that
what has been found is what was. Because essentially the person that marked the number on
the bicycle was not called to give evidence.

The learned trial magistrate was wrong in law to have admitted in evidence the report
alleged to have been obtained from Kampala, which suggested that the original number of
the (stolen) bicycle had been altered. That piece of evidence was hearsay and should not
have been admitted… unless the expert who had examined the bicycle had testified before
the court and been cross-examined on the point as to how he arrived at his conclusion.

Over and above those cases you should also look at the cases of

Magoti s/o Matofali v R (1953) EACA 232.

“A plan of the locus … was made and produced in evidence by a police corporal. Various
points on the plan are marked with letters and it bears a legend showing what these points
represent… as to what each point represented he merely said ‘I got the information from
Antonia, (P.W. 2), as to positions and ownership.’ ‘This, of course, was merely hearsay and
his evidence should have been supported by the evidence of the witness Antonia to the
effect that she had, subsequent to the event, pointed out to the corporal the places where the
various incidents, to which she had testified, had taken place.”

R v Gutasi s/o Wamagale (1936) 14 EACA 232

“We note that the statement made by the appellant (Ex.P.1) to Mr. Harwich, Superintendent
of Police, was admitted, although the two interpreters who had carried out a double
interpretation were not called as witnesses. Without their evidence this statement was
strictly inadmissible since Mr. Harwich could only speak to have taken down what he was
told by the second interpreter.”

4
Waugh v R (1950) AC 203 (PC).

And basically these cases also discuss instances where courts are faced with hearsay
evidence and how they treat them. And it would be useful to read those to begin to
understand what kind of information, the court is really going to take into account in
determining whether a particular piece of evidence is hearsay or not. And essentially that is
about the rule, that is you should not go to court to say what you heard another person say to
establish the truth of that which you are saying.

There are exceptions to the hearsay rule and actually the exceptions are many more than the
rule itself:

1. the first one would be admissions, formal and informal admissions. And these are
covered at sections 17-24

2. confessions are another exception to the hearsay rule covered at sections 25-52

3. thirdly, statements made by persons who cannot be called as witnesses are an

exception to the hearsay rule. And these are laid out at section 33 of the Evidence
Act.

4. evidence given in previous judicial proceedings is also an exception to the hearsay

rule. And that is covered at section 34 of the Evidence Act.

5. statements made under special circumstances are also an exception to the hearsay
rule. And a number of these are laid out in from section 37 through to 41.

6. statements in documents produced in civil proceedings are also an exception to the

hearsay rule. Section 35 and 36

7. Res Gestae is also an exception to the hearsay rule.

8. affidavit statements especially where they are based on information are also an
exception to the hearsay rule.

9. statements taken from sick persons who are about to die are also an exception to the
hearsay rule. And these are hazards(?) under the Criminal Procedure Code.

10. And also evidence by certificate covered at sections 77 and 78.

We will begin by looking at statements made by persons who cannot be called as witnesses:

Statements by persons who cannot be called as witnesses

Section 33 lays out what those statements might be. It actually has 8 examples of such
statements and these are all, in their own right, exceptions to the hearsay rule. And therefore

5
I could not agree more with Lord Reid that the rule against hearsay is technical and absurdly
technical.

The opening paragraph at section 33 gives the context within which those exceptions
covered at that section apply:

“Statements, written or oral, of admissible facts made by a person who is dead, or who
cannot be found, or who has become incapable of giving evidence or whose attendance
cannot be procured, or whose attendance cannot be procured without an amount of delay or
expense which in the circumstances of the case appears to the court unreasonable, are
themselves admissible in the following cases-“

So it is not all the time that you have, for instance, under section 33 (a) a dying
declaration or whatever else, that it is going to be used in evidence. What is detailed
at section 33 introduction will have to apply.

So essentially the statement will be admissible if the person make them is dead, cannot be
found, has become incapable of giving evidence, their attendance cannot be procured. Or
even if it can be procured that would actually occasion expense and delay which in the view
of the court is unreasonable. If those circumstances apply then (a), (b), through to eight
would be admitted. Is it clear?

So each of these eight exceptions there is that rider: cannot be found, is dead, the attendance
cannot be procured without delay or cannot be procured at all. So if it is alleged that a
person is dead, do you think that this statement that a person is dead, is enough? It is not.
The fact of the death has to be ascertained. How do you prove that a person is dead? By a
death certificate, the presumption of death, by people who participated in their burial can be
called to testify to the fact of death. But essentially the fact of death is a fact that needs to be
proved until you have proved that the person is dead through the screening, then you
couldn’t actually bring any of these statements …. And if a person cannot be found the fact
of not being found must relate to the time that he is required to give evidence. So you cannot
just say that you have not been seeing the person…if no effort has been made to procure
them to come and give evidence. So the fact of not being found must relate to time during
which you are sought to give evidence.

And the authority for this supposition is the case R v Ndolo (1926) 10 KLR 11.

The court considered the meaning of “cannot be found” in connection with S. 33 India
Evidence Act and Section 34 of Kenya Evidence Act where the language is identical. Here
the witness left his place of employment and was not served with a summons for the date of
the trial. The trial was adjourned and assistance from the Registration Department was of
no avail, as his movements could not be traced. It was contended that his deposition should
be read. The defence argued that has the prosecution taken reasonable steps to discover his
whereabouts in preparation for the first date of hearing he would have been available. The
court held that the words “cannot be found” refer to the time when the witness is sought to
to attend the trial, and do not refer to the state of affairs at some earlier period. There was

6
no question as to whether the search had been a diligent one, and the words appear to imply
that such a diligent search should be required before the condition is held to have been
fulfilled.

And also the case of Thomhill v Thornhill (1965) EA 268 (CA), would be authority for the
proposition that the fact of not being found has to be proximate to the time you require the
person to give evidence.
What is an unreasonable delay, or unreasonable expense is a matter within the discretion of
the court, dependent upon the circumstances of a particular case.
In this case “the learned trial judge also stated in his judgment that the cost and
inconvenience of bringing a witness from the United Kingdom would not be great in these
days of rapid and inexpensive air travel. With great respect, I disagree that air travel in
these days is inexpensive, although I agree that it is rapid. But the question seems to be this
– is it justifiable legally to put the petitioner to the expense of bringing a witness from the
United Kingdom to testify about a fact which is not denied and in respect of whose evidence
the court has a discretion to accept on affidavit, particularly as the petition is not defended
and no application was made to have the witness orally examined?”

Having satisfied those introductory matters, the first category of statements made by persons
who cannot be called as witnesses, are dying declarations. Section 33(a)states:

“when the statement is made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in cases in which the cause of
that person’s death comes into question and such statements are admissible whether the
person who made them was or was not, at the time when they were made, under expectation
of death, and whatever may be the nature of the proceeding in which the cause of his death
comes into question;”

So when the cause of death of a person is in issue and this could be in either civil or criminal
proceedings, the statement made by such a person which deals with the circumstances of the
cause of the death is going to be relevant. And the case to look at here is the case of Terikabi
v Uganda (1975) EA 60. The deceased in this case gave or made a statement giving the
cause of his death but no evidence of the circumstances relating to the death. And of course
the question was: would this be admissible? Because essentially people are looking at it as
being that he has to give both cause and circumstances. So this case was testing whether if a
statement gave only cause, would it be admissible? If it gave only circumstances but no
cause, would it be admissible? And the court here held that the statement was admissible,
that it was not necessary that the statement refer to both the cause and circumstances.
Mention of either cause or circumstances was sufficient.

In certain jurisdictions it is required that for a dying declaration to be admissible the person
making it must have haven in imminent expectation of death. And the assumption here is
that if you are in imminent expectation of death, you are unlikely to tell lies because you are
expecting to be going to your maker and you do not want to go tainted by untruth. But of
course you know that it fallacious as well because you may be revengeful against a
particular person that you do not mind if after you are dead they spend all their lives behind

7
bars, accused of having killed you. In Kenya, however that is not a requirement. So it is not
required in this country that for a dying declaration to be admissible one would have to be in
imminent expectation f death. And that is actually contained at section 33(a), if you look at
the sentence beginning, “such statements are admissible whether the person who made them
was or was not, at the time when they were made, under expectation of death..”.

And the case to look at here is a case that we will look at again when we look at confessions.
The case of Swami v King-Emperor (1939) 1 All ER 396 (PC). In this case the court
considered the admissibility of evidence by a widow that the deceased had told her that he
was going to a particular place on the invitation of the appellant’s wife and that the
appellant’s wife had asked the deceased to go and receive payment of his dues at that place.
So the court was considering whether evidence of a statement by a widow that the deceased
had told her he was going to a particular place on the invitation of the appellant’s wife to
pick up payment of his dues. And this statement was held to be admissible even though it
was made before the cause of death had arisen. So the deceased here was not in imminent
expectation of death. But they had made a statement that shed light into the circumstances
that led to the death that he was going to pick up his due.

Again on the same point you should look at the case of Kaluma v R (1968)EAR 349. In this
case, three appellants were convicted of the murder of two women in Kenya. The three
appellants happened to be wanted by the Uganda police and the two women they were
accused of having murdered were part of a search party which had been sent to Kenya to
find and arrest the appellants. Evidence was admitted at the trial that one of the two women
had made inquiries about the appellants whereabouts and this had been reported to the
appellants. This evidence was admitted on the grounds that it was relevant as to the motive
or reason for the murder. The appellants were convicted and they appealed challenging the
admission of the evidence about the inquiries and the court held that evidence about the
inquiries was admissible under section 33 of the Kenya Evidence Act as a statement made
by a person who is dead as to the circumstances of the transaction, which resulted in the
death. So it was not in the category that would be hearsay and inadmissible. It was an
exception to the hearsay rule. So the person was dead and under section 33 (a) a statement
made by a person who is dead on the circumstances of their death would be admissible as an
exception to the hearsay rule.

So essentially then what would be the requirement under section 33 (a) for admission of a
statement as a dying declaration:

1. it has to relate to the cause and or circumstance of the death of the maker and not to
any other person. So it has to relate to your death as the maker of the statement, not
to the death of other people. And the authority for that preposition is the case of
Mohamed Warsama v R.(1956) 23 EACA 576. In this case the deceased had made a
series of dying declarations which were precise and detailed and if true conclusive.
He had in his declaration also stated the cause of death of another person and the
question was whether that part of the dying declaration that identified another person
was admissible. And the court held, no, it was not admissible. The question was
whether that part of the dying declaration that pointed to the cause of death of
another person was admissible. Remember we said that the deceased made many

8
 dying declarations of a precise and detailed and if true conclusive. But in those dying
declarations did not just talk about the cause of his own death. He actually talked
about the cause of death of another person. And the court was enquiring as to
whether that part of the statement that talked about the cause of death of the other
person was admissible. And the court held, no. the dying declaration has to related
to the cause and or circumstances of the death of the maker, not of other people. So
they would admit what was pertaining to his death, not to the death of other people.

2. The second rule is that the statement must be proximate to the death. So if you had
made a statement about your death in the year 2000 and then you die this year, the
whole question of the proximity of the statement to your death is going to arise. And
the authority here is Antonio v Barugahare v R (1957) EA 149 (CA). The witness
here had given evidence that the deceased woman had told her six weeks earlier
before she died that the accused had asked her to marry him. So the deceased had
confided to the witness, six weeks prior to her death, that the accused had asked her
to marry him. The deceased had also asked the deceased according to the report to
lend him money to pay his tax. She had refused to yield to either demand. And she
was found dead six weeks later. And the question was whether what she had
confided to the witness was a dying declaration. Was the information that he had
passed to the witness, that she had been asked to marry the accused and lend him
money a dying declaration. The court held, not, it was not a dying declaration
because the facts alleged were not proximate or related to the death and the
circumstances were not those of the transaction resulting in the death. You should
compare that holding to the holding of the case R v Kabateleine s/o Nchwaba (1946)
13 EACA 164. In this case, a complaint made by a deceased person to her headman
two days before the house in which she was sleeping was burned, was held directly
related to the occasion of the deceased’s death and was a circumstance that resulted
in her relevant. Essentially here you are looking at two days and 50. So while six
weeks are seen as not proximate, not close enough, here the complaint had been
done two days earlier and that is the duration between the complaint and when the
death occurred, is what makes the ruling that it is part of the transaction that resulted
in death.

3. The dying declaration must be complete. And we should here revisit the case of
Beddington. You should also look at the case of Waugh v R (1950) AC 203 (PC). R
v Beddington (?), you looked at that when we were looking at res gestae or was it
similar facts? In Waugh’s case, the declaration was held to be inadmissible because
it was not complete on its face. The deceased in this case fell in a terminal comma
when he was making the statement leaving it incomplete. So basically what the court
is saying is that you don’t know what the person might have said if they had had the
opportunity to complete the statement, and for that reason, being incomplete, then
you could not say it is a statement that should be admitted. The same point is made
in the case of R V. Charles Daki s/o Daki (1960) EAR 34. The deceased was in this
case admitted into hospital suffering from gun shot wounds. When he was asked
who shot him, he said, “Charles Daki has killed me, he shot me with a gun. I saw
him with a gun. He was on a motorcycle. A friend of mine had visited me and I went

9
to the garage with him.” At this point the doctor intervened and the deceased died
subsequently. Daki was charged and convicted on the basis of the statement, despite
his counsel’s objection. On appeal the statement was held inadmissible on the
grounds that the deceased might or might not have added something… And
essentially because this statement was not complete, on appeal it was held that this
statement could not be used as basis of conviction because for a dying declaration to
be admissible it had to be a complete statement. For example, if he had stopped
at,”Charles Daki killed me. He shot me with a gun.” And then he did not express
willingness or desire to say other things. Basically he had gone on to say—he was
now going off on a tangent. What was he going to say when he said a friend visited
him, we went to the garage? May be the friend started quarreling with Charles
Daki…nobody knows what this person wanted to say… which means the statement
was incomplete because you don’t know what he might have said if he had not
expired at that point. Let us also look at the case of Pius Jasunga s/o Akumu v R
(1954) 21 EACA 331. In this case, a witness who was an assistant police inspector
gave evidence that he saw the deceased lying on the road with a wound in his chest.
When asked who had injured him the deceased replied, ‘Pius Jasunga had stabbed
me’. Later at the hospital, the deceased made a statement to the superintendent of
police during the cause of which he got weaker and weaker and he was unable to
sign the statement. There was no corroboration of this story and it had been made in
the absence of the accused by a man who was suffering from a terrible wound, from
which he died subsequently. And the court here held that even though as a rule of
law it is not required that a dying declaration should be corroborated, as a matter of
practice you should not convict on uncorroborated dying declaration, even though as
a matter of law there is no requirement that there be corroboration or independent
credible evidence fortifying a particular statement, and in this case a dying
declaration. There is no requirement of law. But here one of the points they noted
was that as a matter of practice the court should always require corroboration. And
they said that the weight of a dying declaration that is made in circumstances
suggesting that the person might have said something more, must be less than the
one that is fully made. A dying declaration that is made in circumstances that
suggest that the person may have said other things but he was prevented from saying
those other things because he expired, the weight attached to that dying declaration
must essentially be less than one that appears to be complete. And over and above
that the principle that even though law will not require you to corroborate a dying
declaration, as a matter of practice the court should always require that such be
corroborated. And that is going to be the final requirement of a dying declaration. A
dying declaration requires corroboration as a matter of practice. When you look at
rules on corroboration, you will see that the law on evidence requiring corroboration
is generally divided into two. There are those circumstances where the law actually
requires that you get corroboration. Like when you have evidence of children of
tender years. There are a number of cases where the law requires that—I think
evidence of the complainant in rape case is required by law to be corroborated. But
over and above that, courts in exercising caution—and again being guided by the
need to be fair to the accused person—have devised instances where even though the
law does not require corroboration they will ordinarily require corroboration. And a

10
 good example is where you have a dying declaration. That a dying declaration
should not form the basis of conviction if it is not corroborated and corroboration
here is talking to bringing in credible, independent, strong evidence to fortify that
which is being state in the evidence requiring corroboration. It is also required for
confessions that are repudiated or retracted, where a person has made a confession
and they later say that either they never made it or that they only made it because
they were tortured or they were coerced into making it. That kind of confession,
even should the court the court decide to admit it, it will ordinarily as a matter of
practice required that it be corroborated.

Statements made in the ordinary course of business

The second category of statements under section 33 are statements made in the ordinary
course of business.
Section 33(b) states:

“when the statement was made by such person in the ordinary course of business, and in
particular when it consists of an entry or memorandum made by him in books or records
kept in the ordinary course of business or in the discharge of professional duty; or of an
acknowledgement written or signed by him of the receipt of money, goods, securities or
property of any kind; or of a document used in commerce, written or signed by him, or
of the date of a letter or other document usually dated, written or signed by him.”

So for a statement to satisfy the requirements of 33(b) it has to be a statement being in

the ordinary course of business. And section 33 (b) gives examples of those to include
entries or memorandum in books or records, and these have to be regularly kept. For
instance, books of account, ledgers, journals. It could also be acknowledgements that are
written and signed for the receipt of money, receipt books, or documents used in
commerce. These would be admissible as an exception to the hearsay rule. And the
assumption here is that the person making them has no motivation to falsify them. They
are kept in the ordinary course of business; they would actually be entered. But
remember in the case of Myers v the DPP what seems to have been record that were kept
in the ordinary cause of business were actually ruled to be hearsay because the person
making them did not actually come to testify to them. And this is again to talk to the
introductory part of section 33, that it has to be that the person is dead, cannot be found,
is incapable of giving evidence, cannot be procured or even they can be procured it will
be as a consequence of delay and expense which is unreasonable. So in Myers v the DPP
it was not established that a person had died, or could not be found. So essentially for
this book to be admissible it is not for all time. The exception comes in because what is
contained at the introduction at section 33 is already applicable, that there is a problem
in getting this person here because they are dead, etc.

And the cases to look at there are

Commissioner of Customs v SK Panachand (1961) EA 303 (CA)

11
 The company imported some blankets allegedly from West Germany, No import licence
was required for goods from West Germany, although a licence was required for goods
from other countries. The Customs seized the blankets acting on information that they,
in fact, had come from East Germany. The company, seeking the return of the blankets,
in order to support its case produced two documents, an invoice, and a document signed
by a Mr. Blok in which it was stated that the invoice, on which appeared the words
“Country of Origin – West Germany”, was correct. The Company claimed that these
documents satisfied the burden placed upon the Customs Acts, i.e. to prove the country
of origin of the blankets.

The decision involved S. 33 of Evidence Act covering cases where the attendance of a
witness cannot be procured without unreasonable delay and expense, subs. (b) dealing
with statements or documents made in the ordinary course of business. The main issue
was whether the invoice and document signed by Mr. Blok were admissible in evidence
to prove country of origin.

The court held basically that the “any person” who will “give evidence of any other fact”
in this case, as set forth in S. 110 I.E.A was Mr. Blok, who by means of his signed
document would give evidence of the “other fact”, i.e. that the blankets came from West
Germany. Before Mr. Blok could “give evidence through the media of the documents, S.
110 placed the burden upon the Company of proving:
(a) that Mr. Blok’s attendance at the trial could not be procured without unreasonable
delay of expense,
(b) that Mr. Blok’s signed document was used in the course of business, and
(c) that the document was actually signed by Mr. Blok, the person whose attendance it
was unreasonable to procure.
Since the Company had failed to meet its burden of proving these conditions precedent to
the admission of the documents they were held not admissible in evidence and the court
ordered condemnation of the blankets.

You should also look at the case of R v Masalu (1967) EA 355 (T).

You should also look at Gichunge v R (1972) EA 546.

And all these cases would be illustrating what might be statements made in the ordinary
course of business. The cases of Masalu and Gichunge are particularly interesting
because they deal with post-mortem reports and would seem to indicate that fact report
can technically be admitted as a statement made in the ordinary course of business if
they constitute a statement of fact, rather than a statement of one’s opinion, when you
are talking about the cause of death, when you are talking about either a statement of
fact rather than an expression of opinion, that would be admissible.

You should also look at the case of R v Magandazi and four Others (1967) EA 84 (CA),
which would also talk to documents made in the ordinary cause of business.

The accused were employed in Uganda to carry loads to the Congo. On a charge of theft
of a portion of the loads by the accused, a letter from an agent of the complainant’s firm

12
resident in the Congo was placed in evidence, but the writer was not called. The Court
said:

“… a letter was produced … by the same witness purporting to come from the
agency of the complainant’s firm in the Congo and showing shortages in the goods
received. (Section 30(2) quoted). The provision of the Section should in my opinion be
only sparingly applied and rarely, if ever, be used where the statement goes to the root of
the whole matter before the Court, as in the present case. Further the letter, although it
may be said to have been written in the ordinary course of business to report a loss,
appears also to be in the nature of a special letter written with a view to the present
prosecution.” The letter was not admitted.

Another case might the case of Idi bin Ramadhan v R (1914) 2 ULR 108.
The statement of a police constable was put in evidence during the course of the trial
after it had been proved that the constable in question had proceeded on leave.
Presumably the statement purported to be put in evidence under s. 32(2) of the Evidence
Decree. GRAY C.J. quoted from Magandazi’s case and from Ningawa v. Bharmappa “I
think in using the phrase ‘in the ordinary course of business’ the legislature intended to
admit statements similar to those, admitted in England, as coming under the same
description. The subject is clearly dealt with in Chapter XII of Mr. Pitt Taylor’s
Treatise on the Law of Evidence, and the case(s) which he has collected show that this
execution to the general rule against hearsay tends only to statements made during the
course, not of any particular transaction of an exceptional kind such as the execution of
a deed or mortgage, but of business, or professional employment in which the declarant
was ordinarily or habitually engaged. The phrase was apparently used to indicate the
current routine of business which was usually followed by the person whose declaration
it is sought to introduce.”

Statements against the interests of the maker

The next category of statements admissible under section 33 are statements against the
interests of the maker.

Statements against the interests of the maker

Section 33 (c ) reads:

“When a statement against the pecuniary or proprietary interests of the person making it,
or when, if true, it would expose him or would have exposed him to a criminal
prosecution or to a suit for damages;”

So essentially a statement which is against the interests of the maker would be

admissible as an exception to the hearsay rule. But remember against the introductory
part of section 33 has to apply before you admit that it makes an exception to the
hearsay rule. And over and above that you have to look at: Is it really against the
interests of the maker? And the interests of the maker might be pecuniary or relating to
money, proprietary where it affects property or the ownership of the property of the

13
maker, or it could also be one that exposes a person to a claim for damages or to
prosecution. And the rationale here is that in the ordinary course of life a person is not
going to make a statement against their own interests and would only make such a
statement if it is true.

Case to look at is the case of Marie Ayoub v Standard Bank of SA (1961) EA 743
(CA).And the statement here was made by the deceased. There was a statement in a
letter where the deceased was said to be owed for the running of his estate. A statement
in a letter in which it was said that the plaintiff were indebted to the deceased for the
running expenses of an estate. The question arose as to whether the statement would be
an exception to the hearsay rule under section 33(c ) and it was held not admissible
because the maker was not dead. The person who had made the statement saying they
were indebted to the deceased for the running of the estate was not dead. So the
prerequisite for the operation of section 33 (c ) had not been satisfied.

The other case you could look at is the case of Dias v R (1927) 3 Uganda Law Reports
214, where the accused was charged with the offense of falsifying books of account and
the prosecution relied on a letter written by a deceased clerk to the head of the
department which charged the accused with having ordered him to make the false
entries. So the question was, could such a statement be admitted under section 33 (c ) as
one against the interests of the maker. Who was maker of the statement here? The
deceased clerk. And who was the accused? He was not the deceased. So the court here
held this statement was not proper one for section 33 (c ) equivalent to Uganda, that it
could not be admitted as an exception to the hearsay rule because it was in the very
interest of the deceased clerk to make that statement so that he could pin responsibility
on the other person rather than on himself. So it was not actually a statement against the
interests of the maker because the maker was charging another person with falsifying the
books and therefore it was not the right statement for the application of this exception.

The next exception at section 33 is statements expressing opinion as to a public right or

custom. And remember again it is when the maker of the statement would be dead,
cannot be found and all those things that are contained in the introductory. So statements
made by persons who cannot be called as witnesses are admissible if they give an
opinion on the existence of custom and for such to be admissible the people ought to be
a person that might be aware of such right or custom and the statement should been
made before any controversy as to the right of custom arose. So you could not make a
statement to suit your claim in a forthcoming suit. The statement ought to have been an
unguarded statement of opinion on a public right or custom and it ought to have been
made before there was any controversy as to that public right or custom. So you made
the statement just before the institution of the suit, then that is not going to be admitted
because you would have tailored it for that specific—and when we talk about a public
right it is one which is held in common by all members of the public. For instance, when
people are talking about a right of way in the form of a highway, people who would
have know that right of way was there, a public right of way was there and it has to be
one that affects a considerable portion of the community. For instance also when you
talk about the boundary of a village. And remember that for it to be admissible as an

14
exception to the hearsay over and above it having been made before there was a
controversy, the person ought to be a person who can be considered as having competent
knowledge, person likely to know.

Statements that relate to any relationship

The next exception is at subsection (e), which reads:

“When the statement relates to the existence of any relationship by blood, marriage, or
adoption between persons as to whose relationship by blood, marriage or adoption the
person making the statement had special means of knowledge, and when the statement
was made before the question in dispute was raised;”

So essentially state of persons who cannot be called as witnesses will be admissible

when they relate to the existence of any relationship. And the relationship could be a
relationship by blood, by marriage or by adoption. And the person making the statement
ought to have been a person who would have had special means of knowledge of the
existence of that relationship. So it is not just any person. It is a person who had special
means of knowledge. And remember again it is only in instances where that person
cannot be called as a witness because of the variety of factors, that they are dead, cannot
be found, etc. And the statement must also have been made before there was a dispute
as to the existence of the relationship or not. So there ought to have been an unguarded
action.

And the case to look at here is the case of Seif Ali Bajkni and others v Hamed Bin Ali
(1945) 7 Zanzibar LR 13. This involved a situation where a child was born 10 months
after the marriage between the parents was dissolved. During the hearing it was sought
to introduce a document concerning the relationship, written by the alleged father. The
document was written in contemplation of the suit because the father disputed the
parenthood and they made the document in the event that the child should ever file suit.
If the child files suit against the father then the father would turn around and say there is
a problem here, I do not accept that you are my son. So the document was written in
contemplation of the suit because the father disputed his fatherhood of the child and the
document contemplated a situation where the child might file any suit against the father.
And the court held that the document conclusively proved the existence of the
controversy and it should be rejected. Because remember we said that the document
ought to have be an unguarded assertion. It should not be one done in contemplation of a
suit. The document itself conclusively proved the existence of the controversy at the
time it is alleged to have been written because the father only wrote the document
because they disputed their parenthood of the child. And they were writing it to guard
themselves in the event that this child should ever fight it against the father. And so it
should be rejected because the document ought to have been made when there was no
dispute as to the existence of the relationship but you see here the father was dead but he
had written the document. But he had only written the document for the purposes of
establishing certain matters.

15
Statement relating to family affairs

The next exception is at (f), statements relating to family affairs. Those will also be
admissible and these ought to be made by persons who would have knowledge, again.
And they could also be on tombstones, family portraits, or other places where such
statement should be made. It could also be in a will or a deed. So if you have a statement
relating to family affairs in any of those places and it is made by a person who cannot be
called as a witness, it would be accepted as an exception to the hearsay rule. And the
assumption here is that there will be nobody inserting falsities in those kinds of places,
where you are talking of a tombstone, a family portrait or a will or a deed. Those are
solemn documents, so if you have those kinds of statements made by person who cannot
be called as witnesses, there will be admissible.

Statements made by persons who cannot be called

Then at section 33 (g) where you have statements made by persons who cannot be
called, which are contained in a deed or other transaction that establish a custom, those
will be admitted. When a statement is contained in any deed or other documents which
related to any such transaction as mentioned in section 13 (a). 13 (a) gave the
establishment of customs or rights. Those would be admissible. And again here you are
talking about statements that show when the custom or the right was created, when it
was claimed, where it was modified, instances when it was recognized, or when it was
asserted or denied. All these could be admissible if they are made by a person who
cannot be called as a witness. And this provision includes private as well as public
rights. So it is not just for public rights. It is also for private rights.

Statements made by several persons expressing feelings or impressions

And finally under section 33, statements made by several persons expressing feelings or
impressions on their part, which are relevant to the issue in question. So if a number of
people who cannot be called as witnesses had made statements expressing their feeling
or impressions which feelings or impressions are relevant to the matter in question, that
is going to be admissible. For instance, if you have a number of people saying they were
apprehensive, they had made statements to the effect that they were apprehensive that
something was happening or that they got the impression that things were not being
done in the way they should have been done. And again here of essence to admissibility
is that they made them as unguarded statements. They are not tailor made for a specific
procedure.

I urge you to read Durand for the explanation of this statement because as you see this is
just one section, which has eight sub-sections. And we are just scratching the surface of
hearsay.

So we still have to deal with the next category of statements that would comprise
exceptions to the hearsay rule. And again to reiterate what Lord Reid said that the rule

16
against hearsay is very technical and actually take a bit of reading through to begin to
appreciate why would it be admissible. And remember when you are reading the
exceptions in section 33 you have to read that bearing in mind the introductory bit: on
when is admissible, it is not for all time. It is when those passes operate. So if you are
bringing a statement when the maker is not dead, it is not going to be admissible. If you
are bringing it when it is not against the interests of the maker or it is against the
interests of the maker but the person could still be found to come and testify to the issues
directly, then it is not going to be admissible. And look at the exceptions to the hearsay
rule as a way in which the legislature is trying to bring information that would otherwise
be unavailable. So you are thinking, you know you cannot get the best because the
person that has the best evidence is dead, cannot be found, and all those things. And so
you allow for the second best. And given that it is your second best, that is why for
instance for dying declarations you have the requirement that it be corroborated. So the
fact that it is hearsay and it is being accepted as an exception to the general rule, is going
to have a bearing on the weight that is attached to that kind of evidence. Is that clear? So
I think we will stop there.

17