Basic Principles of Law of Evidence in Nepal

1. Evidence must be confined to the

matters in Issue

2. Best Evidence must be produced

3. Hearsay evidence is no evidence

4. He who asserts must prove

5. Principle of Estoppel

Evidence must be confined to the  matters in Issue

• Principle cause behind this principle is to save time of

the court for not being collected unnecessary evidence

and make easy to arrive in decision.

• However, the court’s decision should be depended on

the evidence to be presented by the disputants.

• Basic theme of this principle is that the evidence to be

collected either by court or to be presented by

disputants should be directly related to the dispute.

• Section 3 of the Evidence Act, 2031 and Section 184a

of the Court Procedure (Muluki Ain) are directly

related to this principle.

Section 3 of the Evidence Act States that:

 The court may examine evidence on the fact in issue

which is to be decided by it and the relevant fact

thereof.

 Explanation: "Relevant fact" means a fact which helps

to prove or disprove the fact in issue of the case to be

decided.

 On the basis of this provision, Court can examine the

evidence for two purpose:

 on the fact in issue which is to be decided by

it; and

 the relevant fact thereof.

Cont’d

No.184a of Court Procedures (Muluki Ain) States:

 Procedures: If it appears that both parties disagree

partly or wholly, there shall be executed a

memorandum clearly setting down the matters on

which they so disagree and judgment is to be made and

proofs, evidence to be examined in respect thereof, and

an order shall be passed for the procurement of the

proofs, evidence and the date for the examination of the

proofs, evidence shall also be fixed.

 In this way, the evidences to be colleted by the court or

disputants should either be directly related to the

dispute or relevant to the dispute.

Best Evidence must be produced

 The evidence to be collected or submitted

should be a best.

 Any evidence which is collected or submitted

to prove or disprove should be primary

(witness) and/or original (Documents).

 Sections 22, 35(1) and 37(2) are directly

related to this principles.

 Section 22: Any material or object (Dashi)

related to the case and identified by the witness

before the court may be taken as evidence.

 Section 35(1): A document or fact mentioned in the document

has to be proved by producing such document.

Exception: It has some exceptions in which secondary or

photocopy can also be a evidence if it is not possible to get

primary evidence.

 Except in the condition where it is compulsory to produce the

document to prove any fact pursuant to this Act, in other

conditions a fact may be proved by the oral evidence.

 Section 37(2): The oral evidence has to be direct in nature, to

mean if the evidence has to be produced on the fact which

could have been seen, heard or felt with the help of any sense

that evidence has to be produced by the person who has

directly seen, heard or felt, as an oral evidence.

Hearsay evidence is no evidence

 Basic principle of law of evidence is that hearsay evidence

is no evidence.

 This is related to the oral evidence which should be direct

or first hand, who hear, feel, or observe/look.

 In criminal law, hearsay evidence is not admitted in

general, and considered as inadmissible evidence.

 Again, Section 37(2): The oral evidence has to be direct in

nature, to mean if the evidence has to be produced on the

fact which could have been seen, heard or felt with the

help of any sense that evidence has to be produced by the

person who has directly seen, heard or felt, as an oral

evidence.

 However, this principle has some exceptions, in which

condition, court can accept certain hearsay evidence by

applying certain terms and conditions.

He who asserts must prove

 This is very important principle of Law of Evidence, in

which the principle of burden of proof is depended.

 The claim who makes it must prove. If not proved, the

claim can not create any obligation of the next party.

 The principle requires that any claim made by the party

should justify on the basis of proof.

 This principle is depended on a Roman doctrine ‘Ei qui

affairmat, ei qui non negat, incumbite probatio” which

means those claim who make it, must also proved.

 This principle is strongly apply in common law system,

where court plays impartial role and the parties have to be

responsible to justify their claim with direct evidence.

Principle of Estoppel

 The word ‘Estoppel’ came in the existence from the

French word ‘Estope’ which means ‘not recognize the

controversary statement which has already made by the

party.

 In general, it is considered as inadmissible evidence.

 There are contradictory opinion of jurists on whether the

issue of Estoppel is a matter of substantive law or the law

of evidence?

 Some of jurists say that it creates some rights and

obligations of the parties, thus it should be a part of

substantive law.

 On the other hand, some of jurists says that, the concept of

Estoppel was developed as a part of the law of evidence,

that’s why it should be taken as a part of the law of

evidence.

 The concept of Estoppel was developed to stop to the

party for being expressed any matter which contradict

with his opinion already expressed.

 It helps to stop to the party for claiming any new claim

which contradict with his previous statement.

 The principle is depended on equity, just and good

conscience to create fair justice.

 According to this principle, a person alleging

contradictory facts should not be heard.

 This cannot be accepted as evidence and court can

also deny the estopped evidence as a best evidence.

Provisions of the Act on Estoppel

 Section: 34.1: When a person has, by writing, oral or

conduct, acted or caused to act another person to

believe a thing to be true and to act upon such belief,

such person shall not be allowed, in any case, between

him/herself and such person to deny the truth of that

thing.

 Provided that, this Section shall not be applicable in

the point of law.

 Section 34.2 : Anything mentioned in Sub-section (1)

shall also be applicable to such person who

receives/gets any kind of right from the persons

mentioned in that Sub-section in relation to the subject

matter of the case.

Cont’d

 On the basis of provisions of the Act, following

conditions should be met to apply the principle of

Estoppel:

 When a person has acted, by writing, oral or conduct, acted

or caused to act another person to believe a thing to be true,

 act should be done on the basis of such belief,

 such person shall not be allowed, in any case, between

him/herself and such person to deny the truth of that thing.

 Person that indicate to the person having contractual

capacity.

 The principle of Estoppel can only be applied in the

case of question of facts, not in question of laws.

Kinds of Estoppel

 Estoppel by Record : If any case is decided by the

court cannot proceed again the same case from the

same court.

 Estoppel by Deed : In civil case, if any party commits

to do or not to do something in written from, that

cannot deny by the concerned party.

 Estoppel by Representation : If any person commits to

perform any work by representation, that cannot also

deny by the party who nominate representation.

 Estoppel by Agreement: If the parties agreed to do or

not to do any work on the basis of fact, that cannot be

denied by the parties.