HAND WRITING EXPERT EVIDENCE IN UGANDA

 General principles and law governing hand writing expert evidence.

1.1.       Section 43 of the Evidence Act provides that when Court has to form   an opinion as to the identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in questions as to the identity of handwriting or finger impressions are relevant facts.

1.2.       Section 45 of the Evidence Act, when the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, that it was or was not written or signed by that person is admissible. A person is said to be acquired with the handwriting of another person when he has seen that person write or when he has received documents written by himself or under his authority and addressed to that person.

1.3.       section 66 of the Evidence Act provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature of the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his or her handwriting.

1.4.       The principles of dealing with a handwriting expert were laid down in the case of Kimani vs Republic (2000) E.A 417, where it was stated as follows:

 “……it is now trite law that while the courts must give proper respect  to the opinion of expert, such  opinions are  not as it were, binding on the  courts…..such evidence must be considered along with all other available evidence and if a proper  and cogent basis for rejecting the expert  opinion would be  perfectly entitled to do so……….”

1.5.       From the facts of the case, the hand writing expert report made by the forensic document examiner was based on photocopies. Additionally, the time frame within which the analysis was done cannot match the time the deceased made the will given the fact that the deceased was very ill at that time and the specimen used was in photocopy. Therefore, basing on other available evidence, the hand writing expert evidence can be rejected by court.

 

2.    Who brings evidence of handwriting expert

 

2.1.       In Mugambwa v Mwenge (Civil Appeal No. 080 of 2016), the court held that it was Mugamba and not Mwenge to prove the document. In that case, Mugambwa claimed to have bought the land and developments on it and adduced a written agreement to prove it. Once he did so, he was bound to prove the existence and authenticity of that agreement. Thus under section 101 of the Evidence Act, the burden of proof shifted to him to prove the agreement by any means necessary including adducing expert evidence to prove those who has executed it. Court found that no evidence was adduced by either party to that effect and thus under section 102 Evidence Act, he failed to discharge the burden of proof.

2.2.        Similarly, In Goobi v Nabunya (Civil Appeal 4 of 2007, Plaintiff averred that the Defendant who was his aunt and who initially owned a semi-permanent structure on the disputed land, gave the same to the Plaintiff as a gift under a deed. The defendant denied ever signing the same. The learned trial Magistrate was of the view that opinion of a handwriting expert was necessary to prove that the defendant signed the gift deed.  However, there was no record to show that such an expert was called or that an expert opinion was received in evidence.  No reasons were availed for failure to utilize the expertise of a handwriting expert.  The learned trial Magistrate went ahead and made comparison of the Defendant’s signatures on KCC receipts and the alleged gift deed and concluded that the Defendant did not sign the gift deed. The plaintiff appealed against the trial judge’s decision. During the appeal, learned Counsel for the Appellant submitted that the learned trial Magistrate erred in law and fact when she failed to consider the opinion of the hand writing expert hence reaching a wrong decision.  The appellate court in determining this ground of appeal cited section 101 (1) of the Evidence Act Cap 6 which states that whoever desires any 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.  Section 102 of the Evidence Act further provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.  The court relied on the Sebuliba vs Co-operative Bank (1982) HCB 129 where the above provisions were interpreted and it was held inter alia, that the burden of proof in civil matters lies upon the person who asserts or alleges.  The court observed that it therefore goes without saying that the burden of proof rested on the Plaintiff to prove on the balance of probabilities that the Defendant did execute a gift deed transferring the suit land on him.

2.3.       The appellate court held that proof of handwriting may be done by an expert witness (Section 43 of UEA) or by person acquainted with the handwriting of the author (Section 45 of UEA), court may as expert of experts make findings on handwriting without a handwriting expert:  See Premchandra Shenoi & Another v Maximov Oleg Petrovich; Supreme Court Civil Appeal No. 9 of 2003.

2.4.       Therefore, from the above decisions, the party alleging that a document was written or not written by a person has the onus to bring expert evidence of a hand writing expert to prove that fact. In absence of that, court may make its own finding as an expert of experts according to the case of Premchandra Shenoi & Another v Maximov Oleg Petrovich; Supreme Court Civil Appeal No. 9 of 2003.