TASK, Explain the exception to the rule of hearsay evidence.

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Evidence means anything which tends to persuade an inquiry of the existence or non existence of some fact or situation which he or she is inquiring about.[1] Section 3 of the Tanzania Evidence Act, Evidence denotes the means by which an alleged matter of fact the truth of which is submitted to the investigation is proved is proved or disproved.[2] It includes statements and admission by the accused person.
   Hearsay Evidence is among the types of evidence that denotes to testimony based on what a witness has heard from another person of which he has no personal knowledge or experience. As general rule Hearsay Evidence is not admissible section 62 of Tanzania Evidence Act requires that all evidence must be direct proved in a case of Tenywa v. Uganda.[3] The accused was accused of stealing a bicycle was seized by police officers acting on this information. On examination the bicycle was found to have forged number plate, the accused was convicted of the offence but  he appealed and on appeal it was held that the police report  from  Kampala suggesting that the original number of the bicycle was altered was hearsay therefore it should not be admitted.
Though Hearsay Evidence is not admissible but there is special circumstance the Hearsay evidence will be admissible (Every general rule has its exceptions). The following are the exception of Hearsay Evidence;
  When the maker of the statement cannot be found then the statement made by him can be admissible and this authority for his supposition is found in a case of R v. Ndolo.[4] The court considered the meaning of cannot be found, here the witness left his place of employment and was not serving 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 movement could not be traced. It was contended that his deposition should be read; the defense argued that has the prosecution taken reasonable steps to discover his where about 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 attend the trial and do not refer to the state affairs at some earlier period.
  When the statement made by a person as to the cause of his death or circumstance leading to death, this is proven under section 34(a) of Tanzania Evidence Act also is proven in a case of Terikabi v. Uganda.[5] The deceased in this case gave or made a statement giving the cause of his death but no evidence of the circumstance 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 circumstance. So this case was testing whether it a statement gave only cause would it be admissible? If it gave only circumstance but no cause would it be admissible? And the court her that the statement was admissible, that it was not necessary that statement refer to both the cause and circumstances. Mention of either cause or circumstance was sufficient.
 When statement relates to any relationship as per section 34(f) which state that when the statement relates to the existence of any relationship by blood marriage or adoption between person deceased and is made in any will or deed relating to the affairs of the family is pedigree or upon any tombstone, family portraits or other thing on which such statement are usually made and when such statement was made before the question in dispute was raised. Under this statement it will make hearsay evidence admissible.
 Person whose attendance cannot be procured without delay or expenses which is unreasonable example witness has acquired diplomatic status the case of Mohamed Taki v. R.[6] Elaborate more about this exception; the court was called upon to take judicial notice of fact relating to natural and artificial division of time and geographical division of the world and public holiday. A party applied to court to compel attendance of a witness who at that time was in Switzerland in the circumstance of the case the court expressly judicially noticed the fact that Switzerland was in Europe and proceedings were taking place in Kampala in Uganda and it would be excessively expensive to import to a witness from Switzerland to Kampala. The court of appeal stated that it might have been better of the learned magistrate had been better of the learned magistrate had evidence before him condition which make section 30 of the Uganda Evidence Ordinance  applicable but he was entitled to take judicial notice of fact that Switzerland is in Europe and Kampala is in Uganda and seems to been satisfied  that the attendance in Kampala of witness from Switzerland could not be procured with an amount of delay or expense which in the circumstance of the case appeared unreasonable.
 Dying declaration, is one among the exception of hearsay evidence section 34(a) constitute what is called dying declaration at common law. Dying declaration is defined in the oxford companion to law to mean verbal or written statement made by a dying person who although not made on oath or in a presence of the accused is admissible in evidences in an indirectment for murder or manslaughter that person, provided the person making it had belief shortly. This exception is addressed in a case of R v. Kabateleine Nchwamba. [7] The deceased two days before she had been burned to death in her house told the headman that the accused was threaten to burn her house because he said she had caused the death of his father by witchcraft. The appeals court held that the statement were a general expression indicating fear or suspicion but one directly related to the occasion of death and therefore admissible.
 Statement and entries in the course of business,  statement of a person who are dead or un available are elaborated under section 34(b) are admissible if the particular statement or entry is made the ordinary course of business or duty. This is proven also in a case of Prince v. Lord Torrington.[8]  This was an action for a price of beer sold and delivered. The plaintiff, in order to prove delivery, produced a plaintiffs salesman who had a duty to sign every after such delivery. At the when the case was in court the salesman had already died. The signature and the death of the salesman, who personally knew of the times of delivery, were proven. The court held that the entries were good evidence for the plaintiff.
 Statement made under special circumstances, this statement include entries in book of account entries in public  record statement in maps chart and plan statement in Acts, gazette etc and  statement as to law contained in book.
Conclusion,hearsay evidence can be admissible under the above circumstance.


REFERENCE(S
STATUTE(S)
Tanzania Evidence Act [cap 6 R.E 2002]

BOOK(S)
Eliot and Phipson, Mannual of Evidence 12th Ed (1987)
CASES(S)     
Tenywa v. Uganda1967 EA 102(11
R v. Ndolo (1926)10 KLR11
Terikabi v. Uganda (1975
Mohamed Taki v. R. (1961)
R v. Kabateleine Nchwamba(1949)
Prince v. Lord Torrington. (1703)

   

[1] Eliot and Phipson, Mannual of Evidence 12th ed (1987)            
[2] Tanzania Evidence Act[cap 6 R.E 2002]
[3] 1967 EA 102(11)
[4] (1926)10 KLR11
[5] (1975)
[6] (1961)
[7] (1946)
[8] (1703)

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