DarState Attorneys

RULES GOVERNING NOTICE TO PRODUCE AND THE USE OF SECONDARY EVIDENCE IN TANZANIAN COURTS

Evidence means the way to prove or disprove a fact that is being questioned. This includes, among other things, statements and admissions made by people accused of a crime.

Secondary evidence

Secondary evidence includes:

Certified copies made following the rules of the law.
Copies made by machines that guarantee the copy is accurate, and copies checked against these machine-made copies.
Copies made from or checked against the original document.
Copies of documents used against people who did not sign them.
Someone’s spoken description of what a document says, if that person has seen the original.

In Tanzania document means any writing, handwriting, typewriting, printing, Photostat, photography, computer data and every recording upon any tangible thing, any form of communication or representation including in electronic form, by letters, figures, marks or symbols or more than one of these means, which may be used for the purpose of recording any matter provided that recording is reasonably permanent and readable.

Secondary evidence cannot be used as evidence in court except when the original document is shown or seems to be with:

The person against whom the document is being used,
Someone who cannot be reached or is outside the court’s control,
Someone who is legally required to produce the document, and after giving that person proper notice, they still do not produce the original document

Notice to produce.

You cannot give secondary evidence (like a copy or description) of a document’s contents unless you have first asked the person who has the original document, or their lawyer, to produce it by giving them proper notice as required by law. If the law doesn’t say how to give notice, then you must give a notice that the court thinks is reasonable for the situation.

Circumstances which do not require Notice to produce.

Notice to produce is not required in the following situations:

When the document itself is a notice such as Gazette, a newspaper or journal
When it’s obvious that the other party knows, they will have to produce the document.
When it is shown that the other party got the original document by fraud or force.
When the other party or their agent already has the original document in court.
When the other party or their agent admits that the document is lost.
When the person with the document cannot be reached or is outside the court’s authority, Or
in any other situation where the court decides it’s okay to skip the notice requirement.

Serving a Notice to Produce.

A notice to produce must be served to the other party in the same manner as the service of documents is conducted under Tanzanian law.

Is it permissible for a lawyer to serve a Notice to Produce?

An affidavit from the lawyer or their assistant, confirming that a notice to produce documents was given and stating when it was given, along with a copy of the notice, will always be enough proof that the notice was served and the time it was served.

About the Author

Mkama M. Kalebu is an advocate of the High Court and subordinate courts in Tanzania and Zanzibar. He practices law with a focus on civil and commercial disputes, representing clients in various courts.