Exceptions to the general rule that "Every fact before the Court of Law must be proved in order to establish existence of a fact in dispute", written by Johnson Yesaya.

QUESTION

Every fact before the Court of Law must be proved in order to establish existence of a fact in dispute. Explain with the aid of relevant instances from the Evidence law which bear exceptions to this general rule.

ANSWERS

PRELIMINARY

Every fact before the Court of Law must be proved in order to establish existence of a fact in dispute, this rule is general and has its exceptions. Law require parties in a dispute to prove facts of the case before court by using admissible evidence i.e. by testimony, documents and things. But this general requirement of the law has exceptions especially to notorious facts which are common known by members of the society.

In the case of Holland v. Jones  Isaacs J stated that;

“Whenever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the court “notices” it, either simpliciter or if it is at once satisfied of the fact without more or after such information and investigation as it considers reliable and necessary in order to eliminate any reasonable doubt.”

Tanzania Evidence Act  has two main exceptions to the general rule that all facts in issue or relevant facts must be proved by evidence;

FACTS WHICH MUST NOT BE PROVED

Facts Judicially Noticeable. Section 58 of the TEA  clearly states that no fact of which the court shall take judicial notice need to be proved. This rule is based on the ground that there are many facts of public and universal nature that are so well known that the courts have to take judicial notice of them without any further proof. Generally matters directed by the statute to be judicially noticed or which have been so noticed by a well established practice or precedents of the courts must be recognized by the judges but beyond this they have a wide discretion and may notice much which they cannot be required to notice. For example, laws passed by the parliament, official seals and signatures, the meaning of ordinary words, division of time, weights and measures, facts regularly recurring in ordinary course of nature of business etc. fall within this rule.

Amiri Rashidi V R  the accused was convicted of selling native liquor without a permit . Some of his buyers testified that he sold them some drink ‘pombe’. The accused himself testified that the pombe was preserved in a barrel to be sold but denied that he had sold any of it. Accused contended, inter alia, that there was no certainty as to what was sold since the charge sheet referred to ‘mbege’. In this case the court was satisfied that evidence available in court was sufficient to identify what was being sold and the court took judicial notice of the fact that ‘mbege’ is pombe brewed from bananas.

Facts Admitted by Parties before court needs no proof because they are already in the knowledge of the court, section 60 of TEA . Facts which have already proved by parties orally or by documents require no further proof and they are considered as facts noticed by court. This section deals with admissions of the parties, oral or documentary, during trial in civil suits i.e. at or before the hearing. Proof of such facts is dispensed with on the ground that the facts admitted need no further proof. 

They are commonly known as judicial admissions or stipulations dispensing with proof. Such admissions may be made on the records that are actual i.e. either on the pleadings or in answer to interrogatories or implied from the pleadings. In addition they may be made between the parties e.g. by agreement in writing before hearing, and at the hearing by a party or his lawyer. In short the section lays a rule that proof need not be given of facts which the parties or their agents agree to admit at or before the hearing in writing or which by any rule of pleading they are deemed to have admitted by their pleadings.

CONCLUSION

Judicial notice is the cognisance taken by the court itself of certain matters which are so notorious, or clearly established, that evidence of their existence is deemed unnecessary. In common law a wide variety of facts are taken into consideration without proof, the power of court to notice facts is provided by section 59 of TEA 

REFERENCE

BOOKS

HEYDON, J.D.; Evidence: Cases and Materials, London: Butterwords, 1984. 

CROSS, R. Cross on Evidence London: Butterworths,  1985. 

MORRIS, H.F., Evidence in East Africa, London: Sweet &  Maxwell, 1968. 

BEST, W.M., The Principles of the Law of Evidence, London:  Sweet & Maxwell, 1911. 

SARKAR, P.I.C. & SARKAR, S. Sarkar’s Law of Evidence, Calcutta, S.C. Sarkar & Sons (Private) Ltd. 1981. 

DURAND, B.P., Evidence for Magistrates Part I & II. 

CHIPETA, B.D., A Handbook of Public Prosecutors, Tabora: T.M.L.P. Book Department, 1973. 

MASSAWE, A.A.F., The Burden of Proof., Mzumbe, Research Information and Publication.Ltd

MURPHY, P.; Murphy on Evidence, Delhi: Universal Law Publishing Co., 2000. 

HOWARD, M.N.; Phipson on Evidence, London:Sweet & Maxwell, 1990

STATUTES

Tanzania Evidence Act Cap 6 R:E 2009

Indian Evidence Act, 1872

CASE LAWS

Holland v. Jones  (1917) 23 C.L.R. 149 at p.153

Amiri Rashidi V Republic  [1968] HCD n. 302