QUESTION B:

The issue in this question is whether Mrs. Shahs recollection of her husbands statement is
admissible in evidence. According to the general hearsay rule, this evidence is not admissible; it
cannot be relied on because it cannot be proven.

However, there are exceptions to the general rule. Section 33 of the Evidence act provides that
statements made by persons who cannot be called as witnesses can be admitted as evidence in
several circumstances. A specific provision to our case is section 33(a) of the Evidence act which
states that 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, then the statement will be
admissible whether or not the maker was under expectation of death.

For a dying declaration to be admissible, the following three conditions must be fulfilled:

a) The maker of the statement must be dead.

b) The statement must relate to the cause of his death or circumstances of the transaction
which resulted in his death.
c) The cause of that persons death must be the subject or a question in the proceedings.

Mr. Shahs statement is a dying declaration as it satisfies the above conditions. In Terekabi v
Uganda, the court held that dying declarations need to deal only with the cause of death or the
circumstances leading to death.

This statement by Mrs. Shah is provides evidence of the reason for her husbands visit- to collect
his debt- and whom he was going to meet- Mr. Patel

In conclusion, the statement is relevant and admissible due to the light it sheds on the
circumstances surrounding the transaction. This was also held in the case of Swami v. King
Emperor. In this case, the court examined the admissibility of the wifes statement and held that
it was admissible as it provided evidence of the circumstances of the transaction.
QUESTION C:

Certain matters though relevant to the fact in issue may be excluded from being adduced in court
on the ground of privilege. A witness is privileged when he may not answer a question or supply
information that is relevant in any judicial proceedings as provided for in section 157(3) of the
evidence act. There are different types of privilege:

i. Spousal Privilege.

This is the legal concept that protects the right to confidentiality of communication within
marriage. It prevents forced testimony from one spouse against another. It is provided for in
section 130 of the evidence act. This privilege is granted to a husband or wife. The rationale
behind this provision is that a husband and wife are considered as one during the existence of
a valid marriage by law. If either was allowed to adduce evidence against the other, by law, it
would be similar to self incrimination due to the view that they are one. The object of
privilege is to ensure the mutual confidence which should subsist between a wife and a
husband is not destroyed by compelling one to testify against the other. There are however
exceptions to this privilege which are found in section 127(3) which provides that a spouse
becomes a competent witness for the prosecution or defence without the consent of such
person, in any case where such person is charged-

a) with the offence of bigamy; or

b) with offences under the Sexual Offences Act;
c) In respect of an act or omission affecting the person or property of the wife or
husband of such person or the children of either of them, and not otherwise.

For this privilege to apply, the communications must be made during the subsistence of
the marriage.

For example, if Mr. X is charged with murder. On the night the said crime, he came home
in a state of distress and narrated the events to his wife, Mrs. X. In the narration, he
confessed that he killed Mr. Y in an act of self defense after taking one too many. The
prosecution, having no other evidence, sought to compel Mrs. X to testify against her
husband. This evidence was not admitted because spouses cannot be compelled to testify
against each other.
 ii. Legal Professional Privilege.
Certain communications between a client and his solicitor are privileged and
immune from subsequent disclosure to a 3rd party. Justifications for this principle
is that it assists and enhances the administration of justice by facilitating the
representation of clients by legal advisers thereby inducing the client to retain the
solicitor solicitor and seek his advice and encourage(s) full and frank disclosure of
the relevant circumstances. This privilege is found in section 134(1) of the
Evidence act. The same section provides for the exceptions to this privilege:
a) any communication made in furtherance of any illegal purpose;
b) Any fact observed by any advocate in the course of his employment as
such, showing that any crime or fraud has been committed since the
commencement of his employment, whether the attention of such advocate
was or was not directed to the fact by or on behalf of his client.

Legal privilege continues even after the employment of the advocate has ceased
and only ceases when client waives the same and applies to all interpreters, clerks
or servants of the advocate as well.

For example, when solicitor Y, is given information by his client W, he ought not
to disclose it to a third party. He can only do so if he, solicitor Y observes in the
course of his employment the client W has committed a crime or a felony.

iii. Litigation Privilege.

This privilege arises after litigation or other adversarial proceedings have been
commenced or are contemplated. It covers all documents produced for the sole
purpose of the litigation in question. For this type of privilege to exist there must
be a reasonable likelihood of litigation and a mere vague possibility will not
suffice.
Litigation privilege extends to all communication between:
a) Client and counsel
b) Client and third parties
c) Counsel and third parties with reference to some anticipated litigation.
 However, the communications must be made with the dominant purpose of
advancing the prosecution or defence of the matter or the seeking or giving of
legal advice in connection with it.

For example, take, company M manufactures batteries. The last batch batteries
were sold to Mr. Bs company. They turned out to be faulty to the extent of
exploding. Mr. B has now informed Company M of his intention to sue. Company
M has sent documents relating to the production and manufacturing process to his
legal counsel to seek for advice concerning the anticipated suit. If during the suit
Mr. B demands for production of such documents, they will not be provided
because they will be covered under Litigation Privilege.

iv. Legal Advice Privilege.

This type of privilege covers communication between a client and a lawyer made
in confidence for the purpose of giving or obtaining legal advice. A counsel may
refuse to divulge the advice to a client if it is not within the jurisdiction of the law.
Likewise, a client may also refuse to give information pertaining to the advice
given to him/her by a legal counsel in a legal capacity. Communications between
a solicitor, acting in his professional capacity and his client, provided that the
communication is for the purposes of seeking or giving legal advice.
Correspondence with independent 3rd parties is not covered by legal advice
privilege.
For example, take, client R wants to know what kind of business to invest his
money from lawyer T, whatever advice he gives will be legal advice.
v. Without Prejudice Privilege.
Parties to a dispute frequently make statements without prejudice as part of an
attempt to settle the dispute. Such statements cannot be used in evidence without
the express consent of both parties as they constitute a case of joint privilege.
They often relate to offers of a compromise and were it not for the privilege
would result into items of evidence on the basis that they constitute admissions.
The objection of this privilege is settling disputes and reduction in litigation. It
protects any disclosures made even after the proceedings have come to a
conclusion.
 For example, take that party H and Party J are having a dispute and they make
statements without prejudice, those statements cannot be used as evidence without
consent of either parties.

QUESTION A:

Blacks Law Dictionary defines Hearsay as, A term applied to that species of testimony given
by a witness who relates, not what he knows personally, but what others have told him or what
he has heard said by others. The general rule is that a statement made by a person not called a
witness, which is offered in evidence to prove the truth of the facts contained in the statement is
hearsay and is not admissible. The very nature of the evidence itself is reason enough for why it
is not admissible. However, as an advocate there are several situations where the law provides
exceptions to this general rule and the evidence can therefore be admitted. These exceptions are
embodied in the Evidence Act from section 33 to 41. The exceptions can be grouped into three
categories as follows:

I. Statements made by persons who cannot be called as witnesses.

II. Statements in Documents produced in civil proceedings.
III. Statements made under special circumstances.

I. Statements made by persons who cannot be called as witnesses.

These are statements made by a person who is dead, or who cannot be found, or who has
be7come 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. Such statements are in the
following circumstances admissible;

1. Statements relating to the cause of death.

s.33 (a) of the act provides that statements made by a person relating to his death
or the circumstances surrounding the transaction of his death are admissible.
In the case of Swami v King Emperor, the deceased left home and told his wife
that he is going to meet the accused in order collect his debt. The deceased never
returned home and was later found dead. The accused was charged and convicted
of murder. The only evidence available was the wifes recollection of her
husbands last words. The court held that the wifes statement was admissible as it
shed more light on the circumstances surrounding the transaction of her husbands
death.
Such evidence would be admissible despite the general rule because it provides
the court with insight on the fact in issue and the circumstances surrounding it.
2. Statements made in the course of business.
An oral or written statement of fact made by a person in the ordinary course of
duty is admissible even after the death of that person even after the death of that
person since there is usually no need of falsification. This is according to s.33 (b).
The statement however cannot and should not be one especially prepared for the
purpose of a proposed suit or proceeding. This was the position in R v
Magandazi and 4 others where the accused was employed in Uganda to deliver
 cargo to Congo. Some of the goods got lost while in custody of the accused. At
the trial, a letter from an agent of the complainants firm resident in Congo was
produced but the author was not called to testify. This letter was not admitted as
the court observed that the letter was written with a view of affixing the accused
as it was after the incident of the loss.
If the documents or entries made by the maker of the statement in books or
records are done in furtherance of his professional duties or in the ordinary course
of business then they would be admissible as true evidence.
3. Statements against the interest of the maker.
s.33(c) provides that if the statement made is against any interest of the person
making it whether pecuniary or proprietary, or would, if found out to be true,
would expose him to a criminal prosecution or to a suit for damages it would be
admissible.
In R v Dias, the accused was charged with the offence of falsifying his
employers books of account. The prosecution sought to bring in evidence in the
form of a letter by the deceased clerk purporting that the accused had ordered the
deceased to make the false entries. The court held that this evidence was not
admissible under this exception because it was very much in the interest of the
deceased to make such a statement.
This type of evidence would be admissible because it is presumed very unlikely
for a person to speak falsely against his own interest unless the statements were
true.
4. Statement of opinion as to public right or custom.

The evidence act provides that statements that gives the opinion of any such
person as to the existence of any public right or custom or matter of public or
general interest, of the existence of which, if it existed, he would have been likely
to be aware. Such a statement ought to have been made before any controversy as
to such right, custom or matter had arisen. This is according to s.33 (d).

According to R v Meghji Hirji Shah, a public right was defined as, one which
is held in common by all members of the public or affects a considerable section
of the community. On the other hand, a private right is one held by only one
person or a section of the community.
 For such evidence to be admitted, the opinion should be one of a person with
competent knowledge who is likely to know of its existence.

5. Statement relating to the existence of a relationship.

A statement will be admissible if it relates to the existence of any relationship by
blood, marriage or adoption between persons as to whose relationship by blood,
marriage or adoption, the persons making the statements had special means of
knowledge. Similar to the other exceptions, the statement ought to have been
made before the dispute arose and by a person who had special means of
knowledge.
In Seif Ali Bajuni and others v Hamed Bin Ali, the court did not admit the
document written by the alleged father because it was made in contemplation of
the suit. In this case, a child was born 10 months after the dissolution of a
marriage between its parents. During the hearing, the father sought to introduce
document written by him in contemplation of the suit in which he was disputing
parenthood.
6. Statements relating to family affairs.
Cap 80 under s. 33(f)provides that such statements are admissible when they
relate to the existence of any relationship by blood, marriage or adoption between
persons deceased, and it made by will or deed relating to the affairs of the family
to which the deceased belonged to, or in any family portrait or pedigree.
The statements can however, be made under the following circumstance; where
there is a question as to the existence or non-existence of family relationships and
where the statement was made before the dispute arose.
7. Statements relating to a transaction creating or asserting custom.
When the statement is contained in any deed or other document which relates to
any such transaction (s.13(a)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), it is admissible.
8. Statements made by several persons and expressing feelings.
According to s. 33(h) of the Evidence act, statements made by persons who
cannot be called as witnesses will be admissible if the statement was made by a
number of persons, and expressed feelings or impressions on their part relevant to
the matter in question.
 Such statements would be admitted because it is highly unusual for a group of
people to make false statements relating to their feelings.
II. Statements in Documents produced in civil proceedings.
9. Under section 35(1), statements in documents produced in civil proceedings are
admissible as an exception to the hearsay rule. Such statements are deemed to be
an exception because where direct oral evidence of a fact would be admissible,
any statement made by a person in a document and tending to establish that fact
shall, on production of the original document, be admissible as evidence of that
fact.
However, there are certain conditions that must be fulfilled, firstly, whether the
statements were made contemporaneously with the occurrence of the facts stated,
secondly, whether the maker of the statement had any incentive to misrepresent
facts.
III. Statements made under special circumstances.
These exceptions to the hearsay rule are covered under section 37 to 41 of the Evidence
act. The rationale for admitting this type of evidence is on the basis of the circumstances
in which they are made. There are a couple of such exceptions.
10. Entries made in books of accounts.
Section 37 provides that entries in books of account regularly kept in the course of
business are admissible whenever they refer to a matter into which the court has
to inquire.
In the case of Odendo v Republic, the appellant was convicted of theft of money
for which he was under a duty to account daily. The actual posting was done by
another man. On appeal, the appellant contended that he had been convicted on
the basis of general assumption which was insufficient and that he could not have
been convicted solely on the basis of books of accounts. Upholding the
conviction, the Court of Appeal held the the charge of theft of money was made
because there was a duty of care on the part of the appellant on that day. Secondly,
the court held that the evidence of the books of accounts was not the only
evidence adduced as there was additional evidence in corroboration.
11. Entries made in public record.
Under section 38, an entry in any public or other official book, register or record,
stating a fact in issue or a relevant fact, and made by a public servant in the
discharge of his official duty, or by any other person in performance of a duty
 specially enjoined by the law of the country in which such book, register or record
is kept, is itself admissible.
For an entry to be considered as a public record, in Ladha and others v Patel
and another, it was stated, it must be intended for the use of the public or be
available for public inspection. Further, it must be intended to be a permanent
record and a record of fact not of opinion.
12. Statements in maps, charts and plans.
Entries in charts, maps and plans are dealt with under section 39. Statements
relevant to the facts in issue or relevant facts made in published maps or charts
generally offered for public sale, or in maps or plans made under the authority of
any Government in the Commonwealth, as to matters usually stated or
represented in such maps, charts or plans, are themselves admissible. If they
werent then it would be hard to believe anything in those documents.
13. Statements of fact contained in laws and official gazette.
When the court has to form an opinion as to the existence of any fact of a public
nature, any statement of it made in any written law of the country concerned, or in
any notice purporting to be made under any such written law, or an official
gazette, where the law or notice purports to be printed by the government printer,
is admissible. This is provided for under s. 40 of the act.
14. Statement as to law contained in books.
According to section 41, any statement of law contained in a book purporting to
be printed or published under the authority of the government of such country,
and containing any report of the ruling of the courts of such country is admissible
when a court has to form an opinion on the law of any country.