The relevance and admissibility of statements made by persons who cannot be called as witnesses

  

Date Posted: 2/19/2013 4:47:05 AM

Posted By: KOROHS  Membership Level: Silver  Total Points: 840

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Evidence is the means by which an alleged matter of fact the truth of which is submitted to investigation is proved or disproved and without prejudice to the foregoing generality. The golden rule of evidence is that evidence that is relevant is admissible and that which is irrelevant is inadmissible and relevance need be in regard to the fact in issue. Among the many types of evidences documentary evidence require that the offeror should provide the judge with certain amount of evidence suggesting that it’s tangible. If evidence lacks authentication, the judge can dismiss the evidence as unpersuasive or irrelevant.

According to justice D. K Maraga, in the case of R Vs. Justus Opondo [2006] , section 62 and 63 of the evidence act cap 80 require facts to be proved by direct oral evidence. That is the evidence of a person who saw, heard or perceived the fact being proved. So a statement made by a person not called as a witness, which is offered in evidence to prove the truth of the facts contained in the statement is hearsay and inadmissible. The rationale for this is not difficult to find. It is the elementary right of the accused person that a witness who is to testify against him should give evidence before the court trying the case which then has the opportunity of seeing the witness and observing his demeanor and can thus form a better opinion as to the reliability of the witness than is possible from reading a statement or disposition given by that witness in a previous judicial proceedings. This helps to determine the credibility and genuinity of the witness and helps the defendant or the accused determine this through cross examination through contradiction of statements made by him through the examination.

In the case of Seifu Juma Mohammed v republic [2007 ] where the admissibility of evidence in regard to the P3 form which forms the basis upon which the police prosecute was in doubt because the doctor who signed the document had retired and a new doctor who was not acquainted with his signature and who had never worked with him took his place and was the one procuring the same as evidence in court. It was in the understanding of the court that the medical examination report to be filled in by the witness in order to enable the police to decide to prosecute and on what basis. It also serves as a reminder or note for the witness in giving evidence from which he can refresh his memory as to the particular case in giving evidence. While it’s true that as a matter of practice the police would not normally prosecute without support of the P3, that does not give the document itself face of evidence. Hence it’s not the form being put in evidence but the evidence of the witness concerned. .There is however an exception to this general rule which is stated in section 33 of the evidence act.

According to section 33 of the evidence act 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 without an amount of delay or expense which in the circumstance of the case appears to the court unreasonable are themselves admissible in the following cases
Upon trial of charge of murder or manslaughter in such cases, a verbal or written statement made by the diseased person whose death is the subject of the charge although not on oath and not in the presence of the accused person is admissible in evidence either against or for the accused person. Provided it was made at the time when all hope of living had left the mind of the declarant that he had entertained a social hopeless expectation of death but need not be expecting immediate death.
When dealing with the admissibility of evidence with regard to statements to documents made in the ordinary cause of business, provided that the memorandum entered into contains the intention of the diseased and the does not contain any mischief and the accuracy of the signature can be attested to by a witness whom the diseased had had previous dealings with and some documents signed by the diseased were delivered to him to make him well acquainted with the signature of the diseased.
When dealing with statements against the pecuniary interest or proprietary interest of the person emphasis is made with regard to the parties directly affected by the document or who are expressly referred to in the documents. In the case of Rangayyan v. Innasimuthu Mudali(1955) where it was stated that the recitals of boundaries in document between complete strangers are not admissible to prove possession or title as against a person who is not a party to the document and that where the recitals of boundaries of a property in a document inter parties is a joint statement made by the parties to the document was held to be relevant with regard to the party as in admission but is not admissible in his favor. But where such recital is in a document between strangers, it’s not ordinarily admissible to prove the possession or title as against a person who is not a party to the document.

Where the statement is with regard to the public right or custom, it should be clearly shown that the public generally have an interest in the use of the given substance referred to in the document. It can be some specific people or the whole public have an interest in the given matter without any discrimination against race or culture or its not repugnant to justice and morality. This can be well illustrated in the Indian case between Ram Saran and Anr v. Narayan Chandra and Ors where it was with regard to a path which was viewed to be a public path which the defendant claimed was on his land and claimed ownership of the portion of land being claimed by the plaintiff on behalf of the villagers. It was held that the document owned by the defendant’s grandfather who was diseased was admissible in evidence because it dealt with a matter of fundamental public interest with regard to the pathway that was used by almost entirely the whole village.

Where the statements relate to the relationship between the parties in relation to blood, the evidence is admissible because the parties may be entitled to benefit from the estate of the diseased or they may hold the estate in trust of another beneficiary related to the diseased or the diseased may have intended the person to be a beneficiary in his estate so any documents which relates to the existence of relationship whether by blood or adoption may be used in court as admissible evidence provided it expressly relates or states the relationship and does not leave a chance for ambiguity to occur with regard to relation. This was evidently brought out in the case of Mullangi Venkatarangam Chetty and Anr v. M Venkatasubbammah and Ors where it was in regard to the transfer of trust from the 1st defendant to the 2nd and 3rd who were maternal relations to the 1st defendants husband who was deceased at the time of the transfer of interest but had left the charity in trust of his wife the plaintiff was an adopted son to the diseased who claimed to be the rightful beneficiary of the charity which had been transferred to the second and third defendants. It was held that the documents which the diseased referred to the plaintiff as his son were admissible evidence with regard to the suit filed by the plaintiff in regard to the charity trusts.

Lastly, When the statement is contained in any deed or other document which relates to any such transaction as is mentioned in section 13(a) which states that “Any transaction, by which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence and when the statement was made by number of persons and expressed feelings or impressions on their part relevant to the matter in question.

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