A witness statement is a written testimony made by a witness before a commissioner for an oath for the purpose of giving evidence in chief before appearing in court for cross-examination. Essentially, it is the testimony in chief of that witness regarding the case. (refer to Total Tanzania Ltd vs Samwel Mgonja (Civil Appeal No.70 of 2018) [2021] TZCA 265)
A party who intends to rely on a witness statement as evidence shall cause his witness to attend for cross-examination. (refer rule 56 (1) of the Commercial Court Rules)
Its format is prescribed in the Third Schedule to the Commercial Court Rules. Among other things, it ought to be accompanied by the intended exhibits to be tendered during trial.
A witness whose statement has been filed in the trial court must appear before the court—either in person or via video link—for cross-examination. Upon appearance, the witness shall be affirmed or sworn in. Following this, the witness must identify and adopt their statement.
If the witness seeks to tender any document attached to their statement, the procedures under Sections 63, 64, 64A, 65, 66, 67, 68, and 69 of the Evidence Act (Cap. 6 RE 2019) must be followed. Specifically, the witness must formally request that the document be admitted as an exhibit, and the opposing party must be given an opportunity to object or consent to its admissibility.
If the document is admitted, the trial court must endorse it in compliance with Order XIII Rule 4 of the CPC. Under Order XIII Rule 7(1), the admitted document then becomes part of the official court record.
If the document is rejected, the court must provide reasons for the rejection (Order XIII Rule 3). The rejected document does not form part of the trial record and must be returned to the party who sought to tender it (Order XIII Rule 7(2)).
Thus, exhibits attached to a witness statement do not automatically become part of the court’s record unless they are formally admitted in evidence and properly endorsed by the trial court.
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