MZUMBE UNIVERSITY

FACULTY OF LAW

NAME : YUSUPH H. KISWAGA

REGISTRATION NUMBER : 1236009/T.20

COURS : EVIDENCE LAW II

CODE : LAW 223

NATURE OF WORK : INDIVIDUAL ASSIGNMENT

LECTURE :

SUBMISSION DATE :29th April,2022

QUESTION.

Read the case of Republic v Remmy Gerald Sipuka & Amina Juto Juma, Economic caseno.5 of
2018, HCT-Corruption and economic Crime Division, Dar es Salaam (Unreported).And
critically Examine key issues relating of the extermination of whiteness characterizing this case.
 WORK OUTLINE

1.0 INTRODUCTION
1.1 Examination of witness in relationship to the given case.
2.0 MAIN BODY
2.1 Power of Court to control examination of witness
2.2 Stages involved in the examination of witness.
2.2.1 Examination in chief
2.2.2 Cross examination
2.2.3 Re examination and further examination
2.3 Examination of hostile witness
2.4 Examination of witness comes to produce documentary evidence

3.0 CONCLUSION

4.0 REFERENCES
1.1 Examination of witness in relationship to the given case.
Rules for the examination of witnesses embody two fundamental principles that sometimes exert
contradictory influences on the shape of the law. One of these principles is that, rules developed
in the context of an adversarial system of procedure means that he law was designed to function
in a system of adjudication where, it is the parties who define the issues, find the evidence and
present the evidence to an essentially passive adjudicative tribunal1. Under this system witnesses
are called by one side or the other because they are expected, in the normal course of events, to
testify in support of the version of the facts put forward by the party calling them 2.judges should
in principle not engage in questioning of witnesses at all; if they do intervene it should only be
for the purpose of clarification. It follows that witnesses will not generally be questioned by
anyone involved in the proceedings in a spirit of free impartial inquiry. Partisan, controlled
questioning is the norm, and free report by the witness is the exception. This point helps to
explain why some witnesses find the process of testifying at best bewildering, because they are
unable to tell their story in their own way, or at worst traumatic, because of robust cross
examination that may have the effect of making them feel themselves are on trial 3. In the given
case of Republic v Republic v Remmy Gerald Sipuka & Amina Juto Juma 4purely seen to
fall under this rule, where by the examination of the witness therein based on the adversarial
system and procedures, as to say that, the parties finds the evidence themselves and present them,
before the impartial person in adjudicative body which is court, the witness who were in the
normal course of events called to testify on their sides.

In the said Remmy’s case, In the course of reaching to the legal decision ,during the herring of
the case, there are various things regarding to the examination of witness as to say several issues
which touch the concepts of examination of witness were characterizing in the case given, be it
in partial way or broader way. As aforesaid, bellow are characterizing issues given in case of as
sited similar to the current position from the current cases based on these issues and person
opinion.

2.1 Order of production and examination of witnesses.

The order in which witnesses are produced and examined shall be regulated by the law and
practice for the time being, in the absence of any such law, by the discretion of court5.The rule
governing the production of evidence and the order in which evidence of witness are to be
produced and examined depends upon the principles which as to who has the privilege or duty of
the right to begin. The right to begin is obviously an advantage to a party with a strong case, if
evidence is rendered by the opponent; it gives him a right to reply. The order in which evidence
has to be produced by the parties is regulated by the Criminal Procedure Code in criminal
cases6.The law is clearly explain about the opening of the case, the right to open is given to the
1
Minor,M;The Textbook on the Law of Evidence(10 thEd),Universal Law Publishing
2
Dennis,H;The Law of Evidence(6thEd).London: Sweet and Maxwel.2017
3
Minor,M; The text book on Law of evidence (supra)
4
Economic caseno.5 of 2018, High Court of Tanzania, Corruption and economic Crime Division, Dar es Salaam
(Unreported)
5
Murphy and Glover.R;Evidence (3rdEd).London:Oxford University pess.2013
6
prosecution and their witness in support the charge against the accused person 7.Duty of the Court
to examine all the Witnesses Produced by a Party. A Court is bound to examine all the witnesses
produced by a party at the proper time and the fact that witness’s name was not mentioned in the
first list of witnesses is not a ground for refusing to examine him But the Court has an inherent
power to check an undue multiplicity of witnesses, and to refuse to examine the witnesses, if the
object of the party producing them for examination is to delay the adjudication of, the case or to
obstruct justice, or if the evidence of the witnesses would be irrelevant. In the case of Ibrahim
Yusuph Kamugisha v Republic8, In this case Honorable judge Luvanda was in the position that
,the order and direction of examination of witness is regulated by the law and in absence by
discretion of court. It is as provided under section 127(1) of CAP 6 R.E 2002 which is now R.E
2019.As it is not contradict to the given Remmy’s case(supra), that clearly the order and
direction of examination of witness was under the stream of the law and observed the law.
However in my opinion in the matter of Cross examination of hostile witness judge did not
consider some procedure as laid down in various case but actually.

2.2 Stages involved in the examination of witness.

under normal circumstances, when a person is called before the court as the witness he or she is
expected to provide information that would assist court to reach decision of the case at hand. The
manner in which the information from the witness can be produced before the court as it is
through main three ways which are, Examination in chief, cross examination and re
examination9.
2.2.1 Examination in chief that it is done by the party who called the witness focusing on the
relevant fact of the case, this kind of examination is the one which prosecution or defense side
intended to proof or disapprove the fact through their witness. The questions in this examination
are limited based on the relevant fact of the case 10, inferences, opinions, or beliefs of a witness
must be excluded, unless they come within sections 47-53 of the TEA, and more over leading
question are not allowed to be asked to the witness and regards to documents a witness may, in
general, be asked about the execution but not on the contents, which must be proved by the
production of the document itself (ss. 63 & 100 of the TEA).
2.2.2 Cross examination.
It is the examination by the adverse party; it comes after the examination in chief by the party
called the witness to prove the case11.Witness before the court as the equipment of the law, shall
be subjected to cross examination, the right to cross examine is available to any party whose
interests may be affected by the testimony of the witness 12.In this stage cross examiner is given
wide chance of questioning witness as differ from examination in chief of which depend on
narration of facts of the case. The cross examiners may ask leading questions to the witness
however not based o the facts and also all question which will have element of discredit the

7
section 288 of the Criminal Procedure Act,
8
(2018)TLR 247
9
Section 147(1) to (3) of Evidence Act
10
Section 146(1) and 147(1)and (2)
11
Section 146(1) and 147(1)and (2)
12
Section 290 of cpa
evidence provided in the in chief are allowed but must not touch the personal life this because
the huge purpose of this examination is to discredit the evidence given in the examination in
chief by using the weakness therein to prove the case in your side13.
2.2.3 Re examination
The party calling a witness has a right to re-examine the witness after he or she has been cross
examined. However, the reexamination may not be used to rehearse again the evidence given in
chief or to introduce new matters. Its purpose is to allow the party to deal with matters arising
out of the cross examination and to get the witness to clarify or qualify the meaning of the
answers given in cross examination14.New matters can be introduced at this stage only with the
leave of the judge and the adverse party may further examine such witness on the new matter
raised in this stage15.More over court has discretion to call again a witness who already examine
for further examination which will include both kind of examination, in the case of Buhanza
John Mugiri v Republic16,judge was in the position that once are charge is substituted during
the trial then accused person in discretion of court may be called for further examination be it
examination in chief or cross examination. This position differ from that of the judge in the given
of Republic v Remmy Gerald Sipuka & Amina Juto Juma,whereby judge after substitution
of the charge did not call accused person for further examination. It is my opinion that in the case
of it was better for judge to exercise his discretion given under section 234(2) (b) and (c) 17 so
that to not let the ground of appeal under this base.
2.3 Examination of Hostile witness and their relevant procedure.
There is time where a party calling a witness may need to cross examine his own witness. This
may occur in situations where a witness turns hostile at the time when examination in chief is
being conducted. A hostile witness is one who tells lies about what he obviously knows or who
deliberately changes his story and, from his demeanor and manner, is clearly biased against the
party calling him18.Is a witness who, in the opinion of the judge, shows no desire to tell the truth
at the instance of the party calling him, to whom he displays a hostile animus 19.As it is observed
from the given case that, an independent witness denial even his own signature and turn to be
defensive than of the prosecution, senior state attorney resorted to a prayer to turn witness as
hostile and judge allowed cross examination. It is trite law that, court may allow the party to
cross examine their own witness which means that to ask the question which might be put by the
adverse party during cross examination 20, it is so when the witness, in the opinion of the judge,
shows no desire to tell the truth at the instance of the party calling him, to whom he displays a
hostile animus21.
13

14

15

16
Criminal Appeal no 22 of 2022,High Court of Tanzania at Kigoma.
17
Criminal Procedure Act.
18
Chipeta B. D; A Handbook for Public Prosecutors
19
Stephen;Digest of the Law of Evidence
20
Section 163 of Evidence Act
21
Stephen in his book Digest of the Law of Evidence
Various decision of court explained about such situation, they provide the procedures to follow
when such situation occurred. In the case of Nehemia Rwechungura v Republic22, Court
explained that, the discretion of court as revealed in the section 163 of the Evidence Act, is
subjected with the procedures to follows, first, copy of the previous statement of the witness
have to be submitted so that judge can compare them with the currents statement. Second, after
comparison and satisfied with, judge have to permit the application for leave and third, Court
have to here objection from the other side and decide on it if any. More over in the herring of the
objection the case of Republic v Joseph s/o Mseti @Super Dingo and others 23, whereas by
considering the objection raised by the defendant council over the procedural irregularities
occurred in declared the witness as hostile, Judge appreciated the argument and uphold the
objection.
The situation in the case of R v Joseph as cited, can be distinguished from that of the given case
simply because in Remmy’s case there was written statement which signed by the said witness
who turn to be hostile while in Joseph’s case there was no statements which was written simply
because it was taken in the interrogation between the witness and his council so it is difficult to
submit a mere oral statement before the court. Also in case of the given case and the case of R v
Nehemiah Rwechungura as cited above, they seen to have the same situation because the both
involve the statement written before the police officer and signed, However in my opinion In the
Remmy’s case, judge in reaching the decision of turning independent witness as hostile did not
consider these procedures as stipulated.
2.4 Examination of whiteness called to produce document evidence.

Documentary evidence is defined as all documents produced for the inspection before the court,
it is a type of written proof that is offered at a trial to establish the existence or nonexistence of a
fact that is in dispute, it can be Letters, deeds, license, certificate, ticket, or other24.The content
within the documents which tendered before the court has to be proved, it can either be by
primary or secondary evidence so that it can be admitted before the honorable court of law 25.The
content of the document tendered before the court as evidence, witness has to be called before
the court to attesting for the purpose of approving its execution if he is there and capable to
appeared before the court however it is not present or is incapable to appeared before the court,
then it must be proved that it is in his hand writing and the signature is in his hand writing26.

The examination of a person called to produce documentary evidence does not directly become a
witness by mere fact that he produce that document and cannot be cross examined unless and
until is called as witness therein of which failure to do so amount to irregularity 27.In the case of

22
Criminal Appeal No.72 of 2020, High Court of Tanzania at Tabora.
23
Criminal case No 162 of 2016,High Court of Tanzania at Mwanza.
24

25
Section 63
26
Section 70 and 71
27
Section 148
Suleiman Yahya @Zinga v Republic28, On replay to the objection based on failure to call
witness who produced document before the court to testify orally. Judge was in the position that
the discrepancy was fatal which cannot be cured even by overriding principle as it led to
discourage of justice. In relation to the Remmy’s case, Judge do observe the procedure by
allowing the cross examination to the witness who called before the court to testify the document
which produced before the court as required by the law.

28
Court of Appeal of Tanzania at Dar es Salaam, Criminal Appeal no 533 of 2019[2021]