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Lecture - V

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Marxist del Capitano
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Law of Evidence II: Lecture V

Desderius M Hekwe (Esq.)


+255714 238 092
Competence & Compellability
[email protected] WITNESSES

Monday, 13th day of May, 2024


MoCU: Wazalendo LR 2
A WITNESS
❑ A person who gives or agrees to give evidence
before a court or quasi judicial body or makes
a statement to a law enforcement agency

❑ See, Section 3 of the Whistleblower and


Witness Protection Act [Cap. 446 R.E 2022]

❑ See further, the Black’s Law Dictionary, 11th


Edition.
❑ Witnesses play a very important role in the
administration of justice.

❑ Their statements are important in the detection


and investigation of crimes and their
testimonies are needed by the court in order to
arrive at a just decision.

❑ They are equated with the eyes and ears of


justice. NPS – Witness Care & Protection, 2023
MATERIAL WITNESS
George Jonas Lesilwa v. The Republic, Cr. Appeal No.
374/2020, Court of Appeal of Tanzania, April, 2024
❑ The Witness who can testify about matters having
some logical connection with the consequential facts
especially if few others, if any, know about these
matters.

❑ The information the material witness possesses has


a strong probative value and, very few, if any
witness, possess the same information.

❑ Probative value is the probability of evidence to


reach its proof purpose of the fact in issue.
Who is competent to testify?
SECTION 127 OF THE EVIDENCE ACT [CAP. 6 R.E 2022]
❑ Every person shall be competent to testify

❑ Unless the court considers that he is incapable of


understanding the questions put to him or of giving
rational answers to those questions

❑ By reason of tender age, extreme old age, disease


(whether of body or mind) or any other similar cause.
Activity -I

❑ Assimilate on the viability of the circumstances


provided for under Section 127 (2, 3, 4, 5, 6 and
7) of the Act.

❑ Feedbacks- Individual Persons, 15th May, 2024!


WHO IS COMPELLABLE TO TESTIFY?
Hoskyn v. Metropolitan Police Commissioner
[1978] 2WLR 695
❑ As a matter of general rule…

❑ Any person who is competent to testify is


compellable.

❑ See, Jackline Josephat v. Republic (Criminal


Appeal 25 of 2023) [2023] TZHC 17332 (19 May
2023)
What happen when a Compellable Witness refuses
to testify?
SECTION 114(1)(B) OF THE PENAL CODE [CAP.
16. R.E 2022]
❑ If a compellable witness refuses to comply
with an order to testify he will be in contempt
of the court

❑ The punishment is imprisonment for a term not


exceeding one year.

❑ Likewise, if he refuses to answer any legitimate


question put to him, he contempt the court.
GENERAL EXCEPTIONS
❑ Children of tender age

❑ Disease of mind

❑ Spouses

❑ Accomplices

❑ Persons with statutory immunities


Activity-II

❑ An appraisal of the decision in Jackline


Josephat vs. R (Criminal Appeal 25 of 2023)
[2023] TZHC 17332 (19 May 2023)

❑ Feedbacks –Individual person 15th May, 2024

❑ Section 130 & 131 Cap. 6


Activity-III

❑ An appraisal of the decision in Chilu Mhundu


vs Republic (Criminal Appeal 143 of 2019)
[2021] TZHC 3897 (08 June 2021)

❑ Feedbacks –Individual person 15th May, 2024

❑ Section 127 Cap. 6


Activity-IV

❑ An appraisal of the decision in Muksin Ally


Nassoro vs Republic (Criminal Appeal 30 of
2007) [2007] TZHC 109 (04 December 2007);

❑ Feedbacks –Individual person 15th May, 2024

❑ Section 142 Cap. 6


Activity-V

❑ An appraisal of the decision in Mohamed


Ramadhani @ Kolahili vs Republic (Criminal
Appeal No. 396 of 2021) [2023] TZCA 81 (2
March 2023)

❑ Feedbacks –Individual person 15th May, 2024

❑ Section 127(2) Cap. 6


Cont..!
❑ Accused allowed to testify against the other

❑ The testimony may guarantee conviction

❑ Best practice requires it be corroborated

▪ Godfrey J Ihuya & Another v. R [1980] TLR 197


Cont..!
❑ Azizi Abdallah v. R [1991] TLR 71

▪ The purpose of corroboration is not to give


validity or credence to evidence…

▪ …It is to confirm or support that evidence


which is credible and or satisfactory.
How many witnesses are to testify in a matter
before the court?
Section 143 [Cap. 6 R.E 2022]
❑ No particular number is needed to prove a fact

❑ The exception is only on those matters that the law


requires to be corroborated. Then, more than one
witnesses is required.

❑ See, Section 127 (3) Cap. 6. Evidence of the child of


tender age must be corroborated.

❑ Evidence of an accomplice as per Azizi’s case


Activity-VI

❑ Account for the relevance of the provisions of


Section 132 up to 141A [Cap. 6 R.E 2022]

❑ Individual Take Home

❑ In view of Section 141 read also the decision in


Ernest Joseph Nyatando v. R [1983] TLR 170
❑ NB:

❑ There shall be a quiz based on any of the listed activities,


work on them thoroughly. Do some consultations if
necessary before due date.
Next Session!
❑ Examination & Questioning of Witnesses

▪ Section 144 to 177 Cap. 6

▪ Section 195 to 221 Cap. 20

▪ Order XVIII Cap. 33, See the Civil Procedure Code


(Amendment of the First Schedule) Rules, 2021.

▪ Section 1 to 9 Cap. 34

▪ Oaths and Affirmation Rules, GN No. 125/1967

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