Function or rules of evidence law

 Evidence denotes the means by which an alleged matter of fact, the truth of which if submitted to investigation, is proved or disapproved; and without prejudice to the preceding generality, includes statements and admissions by accused persons[1]. Thus evidence is something which serves to prove or disprove the existence or non existence of an alleged fact. A party who alleges the existence of a certain fact has to prove its existence and the party who denies has to disapprove its existence or non existence[2]. Law of evidence means rules from different laws governing what facts may be proved or disproved in court, they govern what materials may be presented in court to prove or disprove a fact, and the form in which those materials should be placed before the court. It is also defined as the body of law regulating the admissibility of what is offered as proof into the record of the legal proceedings[3].

The production of evidence has not left to parties to decide on what they wish to tender before the court of law without procedures, there are rules that governing the production of that evidence gives the court a greater chance of arriving at the correct conclusion. Those rules play a great role in helping the court to deliver justice, the following are the functions of the law/ rules of the evidence: -

 Analytical function; this entails that law of evidence  are created to restrict admissibility of evidence which by their nature are likely to be inadmissible in some circumstances depending on the rule from which the said function arose. For instance the function of the rule against hearsay evidence, this rule as provided under section 34[4] is not necessarily of bad account; sometimes it may be admissible in a certain circumstance. For instance the statement made by person who cannot be called as a witness either by reason of death or incapacity may be testified by the other person who heard it or whom the statement was made on his favour[5].

Preferential function; Before the court of law the court tends to accept or prefer superior evidence  to inferior evidence, for example when there is primary evidence the court does not accept secondary evidence unless the one producing that secondary evidence alleges that primary evidence is on the possession of adverse party as envisaged in Section 67 (1) (a) (i)[6]. It was agreed in the case of Dr. Kakonge v Christine Bitabeiho[7] where the original document appeared to be in the possession of an adverse party the one who wants to produce it will be allowed to produce secondary evidence after he has produced notice to produce. So this preferential rule governs on what the court prefer most than the other if the one is stronger than the other.

Structural function; these rules are designed to provide for a framework in dealing with different evidence produced or tendered before the court, it govern the court to be aware on the rules applicable in describe either the burden of proof or authentication of exhibits  produced before the court. With regard to the burden of proof, the standard of proof required in the criminal proceeding is that of beyond reasonable doubt different of that civil proceedings whereas the parties must prove on balance of probability,  this is clearly cemented under provision of section 3 (2) (a) (b) of the law of the Evidence Act[8]. The same position has been discussed in the case of Jonas Nkize v Republic.[9] where the court were on the opinion that “  it is the trite law that he who alleged must prove and the burden of proof lies on the prosecution with regards to criminal cases beyond reasonable doubt and to the parties in civil proceedings on balance of probability.”

Prophylactic function; The court tends not to allow evidence which it will be incapable to evaluate, for example adducing evidence on previous practice of person accused either on behavior or acts. It is provided under section 54, 55 and 56 of the Evidence Act[10] on the relevancy of character. Bad character in criminal cases is irrelevant unless evidence has been given on good character, also in cases of previous convictions the court does not take it as evidence in proceedings, it only consider after conviction during mitigation. This prophylactic rules helps the court to act in the channel of justice because, if it considers previous conviction as evidence, justice will not seem to be done because the said person may have been departed from his previous conducts. However incase of bad character, the bad character of the accused is irrelevant but it will be relevant and may be admitted if bad character itself is in issue. In the case of John Makindi v Republic[11] the appellant appealed against conviction when he was convicted of manslaughter of a boy by beating, in his appeal he appealed against the evidence admitted to the court that he used to beat the deceased. The court of appeal upheld that the evidence of previous beating of the deceased by the accused is relevant and admissible because the issue before the court was manslaughter by beating.

Simplification function; This function helps the decision maker to understand the general picture of the past events of the case at hand. Simplification rule plays an important role to simplify the case before the trial court so as the decision maker to be able to know the whole facts of the case before tries to arrive at conclusion, again the agreeable norm that court know the end of the case before finish to hear the case.

Policy based function; this function are fundamental to preclude the admissibility or compel adduce of certain evidential facts based on the agreeable policy that have been established to have been common, this includes facts of confidentiality  or protect state’s secret. This rules denied the adduce of the certain secrete fact so far the same has been given a privilege not to have been disclosed, the rule can be envisage under provision of section 137 of the law of Evidence Act[12] That restrict an Advocate or other personnel to disclose any information obtained from their client under fiduciary duty. Again in the case of Prof. Dr. Costa Rick Mahalu & Grace Martin v Republic[13]Court were of the opinion that, Despite the fact that His Excellency Hon: Benjamini Mkapa (Former President of United Republic of Tanzania) adduced evidence as DW2 for the accused, he was precluded by the rules of evidence from adducing evidence that are against policy of the state so as to protect state secret[14].

With regard to the afore discussed function of the rules of evidence one need to consider them as very essential since the same helps to show existence or non existence of certain fact so as to be proved to the satisfaction of the court thus it becomes apparent that the rules of evidence are important because it is according to such rules that the evidence is placed before the court to show the existence or non existence of that facts.

We therefore hold that if there are no rules at all then no case will ever be decided and that it will take years before the simplest case is decided and justice will become a mockery.

BIBLIOGRAPHY

ARTICLES

Kahsay Debesu & Andualem Eshetu, (2012) Meaning, nature and purpose of Evidence law

BOOKS

Abhinav Prakash, (2012), Law of Evidence, Universal Law Publishing Co. PVT. LTD, New Delhi

L. B Curzon, (2002), Dictionary of Law, 6^th Ed, Pearson Education Limited, England

S. L. Salwan & U. Narang, (2013), Legal Dictionary, 23^rd, Academic (India) Publishers, New Delhi

Vepa P. Sarathi, (2013), Law of Evidence, 6^th Ed, Eastern Book Company, New Delhi

STATUTES

The Evidence Act [CAP 6 R.E 2002]

The Penal Code [CAP 16 R.E 2002]

CASES

Dr. Kakonge v Christine Bitabeiho, Civil Suit No. 755 of 1992 (HC) Uganda

Prof. Dr. Costa Rick Mahalu & Grace Martin v Republic, Criminal Case No 1 of 2007

Jonas Nkize v Republic (1992) TLR 213

John Makindi v Republic [ 1961]  EA

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[1]  Section 3(1) of The Evidence Act [ Cap 6 R:E 2002]

[2]  Kahsay Debesu & Andualem Eshetu, (2012) Meaning, nature and purpose of Evidence law,

[3]  Black’s Law Dictationary, 9^th Edition, 1999, pg 635

[4] The Evidence Act [ Cap 6 R:E 2002]

[5] See the case of Laurent Mpeka v Republic ( Criminal Appeal No. 23 of 2004) Mlay J.

[6]  The Evidence Act (Cap 6 RE 2002)

[7]  [Civil Suit No 755 of 1992]  (HC) Uganda.

[8]  CAP 6 RE 2002.

[9]  (1992) TLR 213

[10] The Evidence Act (Cap 6 RE 2002)

[11] [ 1961]  EA

[12] Act No 6 of 1967

[13] Criminal Case No 1 of 2007

[14] See also the Case of National Bank of Commerce Vs NABRO LTD & Meeda Reuben Naburi (HC)  Commercial Case No 44 of 2001