BURDEN OF PROOF AND STANDARD OF PROOF.
Under s. 4 of the Uganda Evidence Act, evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are declared to be relevant. C.D. Field has defined burden of proof as a metaphorical phrase indicating an obligation to prove a fact or facts. This obligation necessarily involves the adduction of evidence in an attempt to prove a fact, subject to occasional cases where a fact can be established without evidence.
Towards the end of the Nineteenth Century, Thayer maintained that the “words burden of proof” were used in two senses and that there was only one phrase for two ideas. One idea was the duty of him who will lose the case if he does not make out a proposition, and the other was the duty of going forward in argument or in producing evidence. Wigmore on the other hand while elaborating Thayer’s thesis treated the two meanings of burden of proof as involving two separate burdens. One burden was that of convincing the jury at the end of the trial and the other was that of making out a prima facie case.
It is provided in section 101(1) of the Uganda Evidence Act that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. Subsection (2) provides that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This can be illustrated as below: (a)
A desires a court to give judgment that B shall be punished for a crime which A says that B committed. A must prove that B committed the crime. (b)
A desires court to give judgment that he is entitled to a certain landing the possession of B, by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts.
The obligation to adduce evidence is not backed by any direct sanction for the penalty for failure to fulfil the duty or to discharge the burden, is the risk of failure in the whole or a part of the litigation. According to s. 102 of the Uganda Evidence Act, it is provided that the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side.
The Study of documentary evidence involves the principles or rules which govern admission of documents in evidence. These are provided for from sections 60 to 100 of the Evidence Act Cap.6 and are divided into five sections. i)
Classification of documents
Proof of execution of a document or genuineness of a document. iii)
The rules of proving the contents of a document
Presumptions relating to documents.
Admissibility of extrinsic evidence to prove contents of a document or the parole evidence rule and its exceptions.
What is a document?
S.2 (1) (b) of the Evidence Act defines a document to mean any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used or which may be used for the purpose of recording that matter.
Documentary evidence is any evidence introduced at a trial in the form of documents. Although this term is most widely understood to mean writings on paper (such as an invoice, a contract or a will), the term actually includes any media by which information can be preserved. Photographs, tape recordings, films, and printed emails are all forms of documentary evidence.
Documentary evidence is defined under the Uganda Evidence Act to mean documents produced for the inspection of the court.
Under s.3(1) of the Tanzania Evidence Act a document is defined as any writing, Photostat and every recording upon a tangible thing, any form of communication or representation by one of those means which may be used for the purpose of recording any matter provided that such recording is reasonably permanent and...
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