Evidance Act

EVIDANCE ACT-1872

X’s statement relating to the identity of the accused may be relevant under section 32(1) of the Evidence Act 1872. In order to be relevant under the said section it is necessary that the person must be dead or can not be found or incapable of giving evidence or whose attendance can not be procured without unreasonable delay or expense.
In the instant case, it can be seen that ‘X’ in now dead, so the condition precedent under section 32 is fulfilled.
Now the question comes, that at the time of making the statement X was not under apprehension death in such circumstances can his statement be relevant?
That answer can be found from clause 1 of the section 32, which has clearly stated that it is immaterial whether the person making the statement was not under the appearhension of death at the time of making the statement. However, the injury about the causation of which the statement has been made, must be the cause of death.
It appears from the fact that X ultimately died due to the injury caused to him. Therefore it can be concluded that ‘X’s statement about the identification of his assailants would be relevant under section 32(1) of the Evidence Act 1872.
 There are two kinds of facts which need not be proved:
(i) Facts about which the court shall take judicial notice; and
(ii) Facts which are admitted.

1. Facts about which the court shall take judicial notice:
Section 57 has given a list of the facts of which the court shall take judicial notice. But it has not defined what is meant by judicial notice. On judicial notice is meant taking notice of any fact which is so well known, or so widely circulated that it would be unnecessary to ask a party to the suit or proceeding about its existence. It may be stated that the list given under section 57 is not complete. There is other events judicial notice. Such as the sun rises in the east. A year consists of 365 lays e.t.c.
According to the section 56 of the evidence act, those facts need be proved.

2. Admitted facts:
Section 58 of the Evidence Act says that facts admitted by the parties by
(a) Agreement
(b) By rule of pleading need not be proved.
…………………………………………… Civil Court order 8 rules iii or v.

PRIMARY AND SECONDARY EVIDENCE
Primary evidence 62: This section defines the meaning of primary evidence which means the document itself produced for the inspection of the court. Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart is primary evidence, as against the party executing it. A document is executed in counterpart when there are two parties to the transaction.
Primary evidence is the evidence which the law requires to be given first.
Secondary evidence 63: This section describes what constitues secondary evidence. Secondary evidence is the evidence which may be given under certain circumstances in the absence of that better evidence which the law requires to be given.
Secondary evidence means and includes-
(i) Certified copies; ( Section 76 defines the expression certified copies).
(ii) Copies made from the original by mechanical process, and copies compared with such copies;
(iii) Copies made from or compared with the original;
(iv) Counterpart of document as against the parties who did not execute them;
(v) Oral accounts of the contents of a document by a person who has seen it.

Proof of documents by promary evidence 64: Document mist be proved by primary evidence except in the cases hereinafter mentioned. A written document can be only proved by the instrument itself. Without objection the evidence may be given, leading case (I) 20 DLR (SC) 205. (II) 44 DLR (AD) 162.
Opposite decision case: (i) 14 DLR (HS) 392. (II) 9DLR (AD) 115. (III) 47DLR (AD) 45.

Case in which secondary evidence relating to documens may be given 65: Secondary evidence may be given of the existence, condition or contents of a document in the following cases-
(a) Original in possessition of opposite party;
(b) Documents admitted by opposite party;
(c) Original documents lost or destroyed;
(d) Original documents not easily movable;
(e) When the original is a Public document within the meaning of section 74;
(f) Certified copies permitted by law;
(g) Document which cannot be conveniently examined.

Rule as to notice to produce 66.
Proof of signature and handwriting of person alleged to have signed or written document produced 67: A person relies upon a document is bound to proof is execution, the fact that it is registred makes no difference. Leading case: Abani Mohan vs. Assistant Custodian.
Proof of execution of document required by law to be attested 68.
Proof where no attesting withness found 69.
Admission of execution by party to attested document 70.
Proof when attesting witness denies the execution71.
Proof of document not required by law to be attested 72.
Comparison of signature, writing or seal with others admitted or proved 73.
Public document 74: Public document means any country or state document. For example Election commission document, court document, legislatiion document etc.
Private document 75.
Certified copies of public documents76.
Proof of documents by production of certified copies 77.
Proof of other official documents 78.

Presumption as to documents
Presumption as to genuineness of certified copies 79: certified are given to be original if it is made proper way.
Presumption asto documents produced as record of evidence 80.
Presumption as to Gazettes, newspaper, private Acts of Paliament and other documents 81.
Presumption as to document admissible in England without proof of seal or signature 82.
Presumption as to maps or plans made by authority of Government 83.
Presumption as to collection of laws and reports of decissions 84.
Presumption as to power –of-attorney 85.
Presumption as to certified copies of forign judicial records 86.
Presumption as to books, maps and charts 87.
Presumption as to telegraphic messages 88.
Presumption as to due execution, of documents not produced 89.
Presumption as to documents thirty years old 90.

Of the execution of oral by documentary evidence
(Section 91 and 92 are both called Parol evidence rule).
Evidence of terms of contracts, grants and other dispositions of property reduced to form of document 91: Exclusiveness of document.
Evidence of evidence of oral agreement 92: Any terms of contract, grant or other dispossition of properties and any matter required by law to be reduceed in writing- any parties or their repredentative on interest.
92(3) leading case Pym vs Cambell.

*** AMBIGUITY***
Ambiguity are of 2 kinds; (i) Patent ambiguity and, (ii) Latent ambiguity.
(a) Patent: Patent abbiguity are those ambiguity which can be discover from a plain reading of the document. For example: if a document state that a sale to be 3 chata of land and hands over possession of the 5 chata of land- that document will be considered suffering from patent ambiguity. Because in such case it is not clear from the document itself, as to whether 3 chatas of land and 5 chatas was sold.
(b) Latent: Latent ambiguity are thise ambiguity which can be discover upon reading of a document, but become apprent when the statement are to be applied practically. For example: if A says I sale to be my land and 3 storied building over it which is situated at in Shajahanpur, and it is found that A thow has a building at Shajahanpur but that is 1 storied. On the other hand A has a 3 storied building situated at Shjahad pur this will be a case of latent ambiguity.
No ambiguity and patent ambiguity: No oral evidence can be given to explain.
Latent ambiguity: Oral evidence can be given to explain.
Execution of evidence to explain or amend ambiguous document 93.
Evidence of evidence against application of document to existing facts94.
Evidence as to document unmeaning in reference to existing facts 95.
Evidence as to application of language which can apply to one only of several person 96.
Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies 97.
Evidence as to meaning of illegible characters 98.
Who may give evidence of agreement varying terms of document 99.
Saving of provisions of Succession act relating to wills 100.

1. Question: What is parol evidence rule? Where in the evidence act 1872, the incorporation of such rule may be found? Does this rule has any exception?
Answer: Parol evidence is oral evidence, as opposed to written evidence. Most agreements are enforceable under contract law even if only oral.
Parol is a rule that oral evidence cannot be used to contradict the terms of a written contract.

In the context of contracts, deeds, wills, or other writings, parol evidence refers to extraneous evidence such as an oral agreement (a parol contract), or even a written agreement, that is not included in the relevant written document.

"Parol evidence of an agreement consisting of mere oral promises made previously or concurrently with the execution of a written contract of sale of land is inadmissible to charge the vendee with the payment of more than the expressed consideration, when the amount to be paid plainly appears from the face of the instrument.
"The parol evidence rule applies to written contracts for the sale or exchange of reality or personalty, and to such provisions as those relating to price; time and mode of payment, and time and place of delivery.The parol evidence rule apply to written contracts to safeguard the terms of the contract. The parol evidence rule does not apply to written integrated contracts in some instances. For example, clerical or typographical errors found in the written agreement may be changed because the incorrect term does not represent the true agreement between the parties.

Section 91 and 92 of the Evidence act are containing parol evidence. According to section 91,
(1) When term of (a) contract (b) a grant (c) any disposition of property has been reduced to the from of a document; or
(2) Where any matter is required by law to be reduced to the from of a document, than (a) the document itself or (b) secondary evidence of its contents must be put in evidence.
This section 1st provision refers to transaction voluntarily reduced in writing. And the 2ed provision refers to those cases in which any matter is required by law to be reduced to the from of a document.e.g. Sale of immovable property of the value of 100 tk and upwards, mortgage for an amount exceeding 100 tk and trust or gift of immovable property.
There are 2 exception of this provision, which are
(i) When any public officer required by law to be appointed in writing and any officer has acted such as, the writing need not be proved;
(ii) Will admitted to probate in Bangladesh may be proved by the probate.
Section 92 operates only as between the parties to a deed or their representative in interest. This section supplementary to section 91 and is to some extent Implied in it. According to this section
(1) When term of (a) contract (b) a grant (c) any disposition of property has been reduced to the from of a document; or
(2) Where any matter is required by law to be reduced to the from of a document,
Have been proved by the production of the document or by giving secondary evidence of its contents, no evidence of any oral agreement or statement shall be admitted as between the parties to any such document or their representative in interest, for the purpose of (i) contradicting, (ii) varying (iii) adding, (iii) subtracting form its terms.
There are 6 exception of this section. Which are in the following:
(1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want for due execution, want of capacity in any contracting party, want or failure of consideration, or a mistake in fact or law;
(2) Any separate oral agreement as to any matter on which the document is silent and which is not inconsistent with its terms, may be proved;
(3) The existence of any separate oral agreement, constituting, a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved;
(4) The existence of any separate oral agreement, constituting, a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved except such contract of grant in required to be in writing or has been registered;
(5) Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved if they are not repugnant to or inconsistent with its express term;
(6) Any fact may be proved which shows in what manner the language of a document is related to existing facts.
In the last we can say that section 91 and 92 define the cases in which documents are exclusive evidence of transactions’ which they embody. They only apply when the document evidencing a contract appears to contain all the terms thereof.

Question: What is mean by primary and secondary evidence? When the secondary evidence of document can be given?
Answer: The documentary evidence is of 2 kinds; which are:

Primary Evidence: facts and details that have been drawn from documents rather than from other, more recent, explanatory articles or books.

Section 62 defines the meaning of primary evidence which means the document itself produced for the inspection of the court. Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart is primary evidence, as against the party executing it. A document is executed in counterpart when there are two parties to the transaction.
Primary evidence is the evidence which the law requires to be given first.
Secondary Evidence: Information that has been drawn from other articles, magazines, or books rather than from the original documents, often located in archives. The usual distinction is that secondary evidence may be coloured by someone else's interpretation of the meaning of the primary sources.

Section 63 describes what constitutes secondary evidence. Secondary evidence is the evidence which may be given under certain circumstances in the absence of that better evidence which the law requires to be given.
Secondary evidence means and includes-
(vi) Certified copies; (Section 76 defines the expression certified copies).
(vii) Copies made from the original by mechanical process, and copies compared with such copies;
(viii) Copies made from or compared with the original;
(ix) Counterpart of document as against the parties who did not execute them;
(x) Oral accounts of the contents of a document by a person who has seen it.

Proof of documents by promary evidence 64: Document must be proved by primary evidence except in the cases hereinafter mentioned. A written document can be only proved by the instrument itself. Without objection the evidence may be given,

Case in which secondary evidence relating to documens may be given 65: Secondary evidence may be given of the existence, condition or contents of a document in the following cases-
(h) Original in possession of opposite party;
(i) Documents admitted by opposite party;
(j) Original documents lost or destroyed;
(k) Original documents not easily movable;
(l) When the original is a Public document within the meaning of section 74;
(m) Certified copies permitted by law;
(n) Document which cannot be conveniently examined.

Question: What do you meant by patent ambiguity and latent ambiguity of a document? Discuss with illustrations in which cases extraneous evidence may be adduced?

Answer: Ambiguity is of two kind; which are:
(1) Latent ambiguity
An ambiguity that is not apparent from the wording of a document but is caused by external circumstances. Latent ambiguity law uncertainty existing where language employed in an instrument is clear and appears to have but one meaning, yet outside evidence makes it capable of more than one meaning.

Definition: Latent ambiguity is that ambiguities which can be discover upon reading of a document, but become apparent when the statement is to be applied practically. For example: if A says I sale to be my land and 3 storied building over it which is situated at in Shajahanpur, and it is found that A has a building at Shajahanpur but that is 1 storied. On the other hand A has a 3 storied building situated at Shjahadpur this will be a case of latent ambiguity.


(2) Patent ambiguity
Law uncertainty existing where language employed in an instrument is capable of more than one meaning.
Definition: Patent ambiguities are those ambiguities which can be discover from a plain reading of the document. For example: if a document state that a sale to be 3 chata of land and hands over possession of the 5 chata of land- that document will be considered suffering from patent ambiguity. Because in such case it is not clear from the document itself, as to whether 3 chatas of land and 5 chatas was sold.







For discover whether the document as referred to under section 123 and section 124 of the Evidence Act 1872 can really be regarded privileged or it not should be determined by the court, at first we should to know some definition-
Public officer: Public officer means a person one who holds public office; an official or employee of the government. The term “public officer” means an officer with public as opposed to private, duties who receives communication made to him in official confidence of such a nature that disclosure in certain case would injure the public interests. (Internet)
Disclosure: Disclose means to release information to a person other than another agency. Disclosure means making records available, on request for examination and copying, or furnishing a copy of records. It means providing information directly or indirectly to a person through any means of communication. (Internet)
In law the word “disclosure” means the first disclosure of communications made in official confidence and does not apply to a disclosure in a court of law of what has already been disclosed outside it. (Monir)

Privilege: In general sense it is a positive or affirmative valuation. It means having a special advantage. (Internet)
Privilege communication: The court have in general power of require anybody within their (subpoena) to depose in courts in judicial proceeding. Yet there are certain classes of information and communication which a person in possession of them is entitled to withhold from disclosure. Such information is known as privileged communication. Section 121 to 131 deal with such communication. The principle of privileged communication is founded upon public policy and public interest. (Najrul Islam)
The Evidence Act three kinds of communication as privileged from-
(i) Matrimonial communication
(ii) Official communication
(iii) Professional communication.

Official communication: The provisions of the Act relating to official communication are contained in section 123 and 124 of the Evidence Act.
(a) Evidence as to affairs of state section 123
(b) Disclosure of communications made in official evidence section 124.

Section 123: This section involves two things:
(a) That the document is an unpublished official record relating to any affairs of state, and
(b) That the officer at the head of the department concerned may give or withhold the permission for giving the evidence derived there from.
This section sufficient to justify non-production of an official document marked confidential would not be in the public interest, for example where disclosure would be injurious to national defense or to good diplomatic relations or where the practice of keeping a class of documents secret is necessary for the proper functions of the public service.
The following are examples of unpublished records of state-
(i) Document exchanged between two states;
(ii) Document exchanged between the state and its own subject;
(iii) Document exchanged between head of department of another state;
(iv) Document exchanged between heads of department or between ministers.

It is for the court to decide whether a document falls within the category “unpublished official records relating to any affairs of state”. In doing so the court can have regard to all the circumstances, barring the inspection of the document itself. What are the affairs of state has got to be determined by a reference to the grounds on which privileged can be claimed in respect of a particular document. It is only such documents which relate to the affaires to the state the disclosure of which would be detriment to the public interest.

Section 124: A public officer cannot be compelled to disclose communications made to him in confidence if he considers that public interests would suffer by this disclosure. This section is designed to prevent the knowledge of official papers, that is to say papers in official custody, beyond that circle which would obtain knowledge of them in confidence whether the confidence was express or implied.
The object of this section is to prevent the disclosure of things not known outside that circle which is in confidence and the section has no application when once there has been disclosure to a member of the public to whom the contents of such papers have not been made known in confidence.
The sole judge as to whether disclosure will harm the public interest is the public officer concerned and it is not for the court to decide whether public interest would or would not suffe.

Case:
S.P Gupta vs. Union of India.
This case arose out of the matter of transfer of a High Court judge and the non-renewal of the term of an additional judge. The correspondence between the Law Minister and the chief Justice of India and that between the chief justice of the High Court and the state Government was required to be produced. It was held that though the “advice” was protected from judicial scrutiny by virtue of art. 74 of the constitution the material on the basis of which the advice was formulated awe not protected. The court also added that the common law protection known as the “Crown privilege” or “public interest immunity” does not apply in India and observed as follows. Meaning and scope of section 123 of Evidence Act 1872 cannot remain static. It must be interpreted keeping in view our new democratic society wedded to the basic values enshrined in the Constitution.
On the other case:
Government of Bangladesh represented by the Secretary Ministry of Law Justice and Parliamentary affairs vs. Md. Shamsul Huda and Other.
The High Court Division shall hold a preliminary enquiry and determined the validity of the objection raised by the Attorney General to the protection of the paper. The Deputy Attorney General submits that the High Court Division in the face of claim of privilege was bound to hold a preliminary enquiry, and the High Court Division ought to have considered sections 123 and 162 of the Evidence Act. On the other hand Mr. Amir-ul-Islam, submits that Article 48(3) does not bar the court calling upon the appellants to disclose to the court the materials. He also submits that the privilege to withhold evidence relevant for the dispensation of justice would cut deeply into the guarantee. The generalized of privilege must yield to the demonstrated specific need for evidence in a pending writ petition.
The Chief Justice hold enquiry into some question which are in the following-
• Whether the paper relates to an affair of the state under section 123;
• Whether the paper in question are relevant on the basis of which the Prime Minister advised the President;
• Whether the proper adjudication of the issues involved in the writ petition;
• Whether a privilege is sought on the ground of immunity under law.

So we can say that, the document as referred to under section 123 and section 124 of the Evidence Act 1872 can be regarded privileged but it should be determined by the court whether that privilege is for the public interest or not.

Burden of proof section (101-112)
Question: Burden of proof of a case never shifts, thought onus of proof might shift discuss?

Answer: In Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994), the Supreme Court explained that burden of proof is ambiguous because it has historically referred to two distinct burdens: the burden of persuasion, and the burden of production.
There are generally three broad types of burdens:
* A "legal burden" or a "burden of persuasion" is an obligation that remains on a single party for the duration of the claim.
* An "evidentiary burden" or "burden of leading evidence" is an obligation that shifts between parties over the course of the hearing or trial.
* A "tactical burden" is an obligation similar to an evidentiary burden.

Burdens are of 2 kinds-
(a) Burden of proving a case ( Burden of proof); ( Section 102)
(b) Burden of proving a particular fact (Onus of proof), (Section 103 and 105-111).

Burden of proof: The duty of a party in a legal proceeding to prove an assertion of fact; it includes both the burden of production and the burden of persuasion.
Basically, "burden of proof" means the prosecution must present evidence at the trial that proves beyond any doubt the accused person committed the crime(s) for which they have been charged. The burden of proof cannot be shifted to the denial under any pretext.


Onus of proof: The onus of proof is usually on the appellant. For example, an appeal is against the refusal of a claim to relief, and the onus is on the appellant to prove that he is entitled to the relief, rather than for HMRC to prove that he is not.
It is therefore very important to pay attention to the way that the evidential burden shifts as the hearing progresses.



Burden of proof never shifts but onus of proof might shift: There is an essential distinction between “burden of proof” and “onus of proof”. Burden of proof lies on the person who has to prove a fact and it never shifts ( For example, A sues B for land of which B is in possession and which as A asserts was left to A by will of C B’s father. If no evidence were given of either side, B would be entitled to retain his possession. There for the burden of proof in on A).
But the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence (For example A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A must prove the admission. B wishes the court to believe that, at the time in question he was elsewhere. He must prove it).
If the evidence is found to be acceptable, the onus shifts to the tortfeasor to prove circumstances, if any which disprove the assertions of the claimant. The expression “burden of proof” has two distinct meanings-
(i) The legal burden i.e. burden of establishing the gift, and
(ii) The evidential burden, i.e., the burden of leading evidence.
In a criminal trial the burden of proving everything essential to establish the charge against the accused lies upon the prosecution and that burden never shifts. The burden of proving a particular fact-in issue may be laid by law on the accused. The burden of evidence may shift constantly as evidence is introduced by one side or the other.
In the end we can say that “Plaintiff in order to succeed must prove his own case, and the weakness of the defendant’s case is no ground to pass a decree. He must prove the evidence in clear term. (39 DLR (AD) 237).

STANDARD OF PROOF
CIVIL: One the balance of probabilities -50%+50%.
CRIMINAL: Beyond- 90%+reassemble- 10 doubt.
Section (107-108): If any question arise the death of any person. And any person said that person can be seen within a time 30 years, it may be give the presumption. This must prove by the other party that person is not seen within period of 7 years if he proved this. If this proof that the person is died.

What is cross-examination? What question may be asked in a cross-examination?


Answer: In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination. In a legal trial, the questioning of a witness by the attorney for the party opposed to the party that called the witness to testify; by extension, any process in which a person is subject to questioning. The questioning of a witness in a trial, or in the taking of a deposition, by the party opposed to the one who produced the witness.
So we can say that, the cross examination is the opportunity for the attorney for one party to ask questions in court of a witness who has testified in a trial on behalf of the opposing party.


According to section 138 of the Evidence Act (1882),
"The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Section 146 (which extend the power of cross-examination far beyond the limits of section 138 paragraph 2) contained that'
“When a witness is cross-examined, he may in addition too the questions hereinbefore referred to, be asked any questions which tend-
(1) To test his veracity;
(2) To discover who he is and what is his position in life; or
(3) To shake his redit, by injuring his character although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.


It is important to remember that the evidence of a victim of crime is only part of the whole case against the accused. It is not up to you to prove the crime.


Cross-examination is a process of questioning an adverse party or witness. Cross-examination questions should be limited to those which reveal information necessary to support statements made in the closing argument. Cross- examination usually consists of narrow, leading questions calling for "yes" or "not" or specific answer. There are exceptions to this generalization which are most likely to occur during supportive cross-examination.

Cross-examination serves two primary purposes:
(a) Destructive cross;
(b) Supportive cross.


The following areas should be considered when weighing the credibility of the testimony:
(1) Is the testimony consistent with common sense?
(2) Is the testimony consistent within itself?
(3) Is the testimony consistent with other testimony presented in the case?
(4) Is the testimony consistent with the established facts of the case?

Irving younger’s ten commandments for cross-examination are worth remembering:
(I) Be brief;
(2) Ask short questions and use plain words;
(3) Never ask anything but a leading question;
(4) Ask only questions to which you already know teh answers;
(5) Listen to the answer;
(6) Do not quarrel with the witness;
(7) Do not permit a witness on cross-examination to simply repeat what the witness said on direct examination;
(8) Never permit the witness to explain anything;
(9) Avoid one question too many;
(10) Save it for summation.

These suggestions will not be applicable to all cases and all situations. The cross-examiner who has a legitimate reason for asking a question- whether or not that reason "violates" one of the ten commandments- will conduct an effective cross-examination.



Question: What do you mean by estoppels? Discuss different kinds of estoppels? Do you agree that estoppels can be used as a shield, and not sword?

Definition of estoppels: Estoppel is a legal term of art for "stopping" certain outcomes requested by a party to a lawsuit. When a person by his act or omission or declaration represents something to anther person and that other person relies upon such act omission or declaration and acts to his detriments than the person who has represented can not deny the truth of his representation.

Estoppel means a legal restraint that stops or prevents a person from contradicting or reneging on his previous position or previous assertions or commitments.
The invoke of the doctrine of estoppels three conditions must be satisfied:
(i) Representation by a person to another;
(ii) The other shall have acted upon the representation;
(iii) Such representation shall have been determined to the interest of the person to whom the representation has been made.

Kinds of Estoppels: Estoppels are of 3 kinds. Which are-
(i) Estoppels by record (section 40 res-judicate);
(ii) Estoppels by document (section 91-92);
(iii) Estoppels by pais conduct promise (section 115).



Estoppels by pais conduct promise (section 115): Doctrine of pais arises (a) from agreement or contract; (b) from act or conduct of misrepresentation. Estoppels by pais conduct promise are of 2 kinds which are-

(a) promissory estoppels;
(b) Proprietary estoppels.

Promissory estoppels: when a person promises to another that he would not enforce his legal right against the other and the other person relies on such promise and if he affaires that the person promising appears if goes back form his promise than it would be inequitable in such a case the person promising would not be allowed to go back from his promise without giving the other party and notice to that effect.

Promissory Estoppels is the doctrine that prevents a party from acting in a certain way because the first party promised not to, and the second party relied on that promise and acted upon it.
The doctrine of promissory estoppels was first developed in Hughes v. Metropolitan Railway Co [1877] but was lost for some time until it was resurrected by Lord Denning in the controversial case of Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130.

Promissory estoppels requires

1. An unequivocal promise by words or conduct
2. Evidence that there is a change in position of the promisee as a result of the promise (reliance but not necessarily to their detriment)
3. Inequity if the promisor were to go back on the promise.


Proprietary estoppels: When a person by his act or declaration represent to the other that other person shall have a right to posses certain property belonging to eh person promising then the person promising shall be stopped from evicting that person.
The traditional version of proprietary estoppels arises in relation to rights to use the land of the owner, and may even be effective in connection with disputed transfers of ownership.

In Wilmott v Barber (1880) 15 Ch D 96, Fry J considered that five elements had to be established before proprietary estoppel could operate:

* The plaintiff must have made a mistake as to his legal rights;
* The plaintiff must have done some act of reliance;
* The defendant, the possessor of a legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff;
* The defendant must know of the plaintiff's mistaken belief; and
* The defendant must have encouraged the plaintiff in his act of reliance.

Can estoppels only be used as a shield and not sword:
Waltons Stores (Interstate) Ltd v Maher (HPH 219)

This is the case where the High Court made a big breakthrough in relation to the doctrine of estoppel, particularly promissory estoppel. In Legione v Hateley promissory estoppel was given recognition in terms of the High Trees principle. This was, as we have said, a limited doctrine. It could only be used as a shield and not as a sword. Typically, High Trees promissory estoppel would be used when the person who made the promise or representation tried to insist on contractual performance and the other party said "But we assured me that I did not have to..." It was used as a defense.
The breakthrough in the Waltons case was two-fold:

(i) it allowed promissory estoppel to be used as a sword; and

(ii) It recognized promissory estoppel as a general principle which could operate in any circumstances of legal relations, not just existing contractual relations.

This is all cery well, but how can we be so sure that estoppel is restricted to the law of waiver rather than being as wide-ranging a basis for the enforcement of promises as general law of contract? in English law this point was decided in the case of Cambe vs. Cambe (1961) 2KB 215, in which the court of appeal including Denning again, now a lord justice held that the doctrine of promissory estoppel can only operate as a shield and cannot be used to create a cause of action. The doctrine of promissory estoppel (by analogy with waiver) can be used to prevent a promisor from enforcing his legal rights, but can not be used to relate now legal rights in the promisee. The fact that promissory estoppel is primarily a doctrine of waiver a shield and not a sword- makes the analogy with other forms of estoppel a little stronger.
On the other case Dewitt vs. Fleming, the fifth district appellate court of Illinois held that promissory estoppel was “not available as a cause of action (i.e. as a sword) in Illinois but was available only as a defense (i.e. as a shield).

A final important point is that it is as yet unclear whether promissory estoppel operates to permanently waive the promisor’s legal rights, or whether the effect is only temporary (the term usually used is suspensory).


Problems: T, professional terrorists has come to a lawyer. T told L that he was involved in a terrorist attack at Shahidbagh for which police is investigating. L has decided to defend T. while dealing with Ts case. L one day noticed that T is carrying certain papers in his hand. When asked what were those T told L that those were detail plans of a robbery which he was planning to commit next week with the help of his other assistants. Ls clerk C who is a pious man, having heard all these informed the police. He told to the police that T was in fact involved with the terrorist attack at Shahidbag. The prosecution produced L and his clerk as witnesses against T in the case where T was charged for committing terrorist attack at Shahidbag and also in the case where T was charged for conspiring to commit robbery. Advice the parties.

Answer: T, a professional terrorist has come to Lawyer after involved in a terrorist attack and lawyer decided to defend T. It may be relevant under section section 126 (1st paragraph) of the Evidence Act 1872. On the other hand T, carrying certain paper which detail plans of robbery and the lawyer noticed that. It also may be relevant under proviso 1 section126 of the evidence Act.
In the present case there are two instant, in the 1st instant, the lawyer is not permitted to disclose the involved of terrorist attack of T, at Shahidbagh, without hi express consent, under section 126 1st paragraph of the Evidence Act. Because this section contain that, “An advocates is not permitted, without the express consent of his client to disclose any thing any communication made to his in the course and for the purpose of his employment.
Now the question comes can a clerk, permitted to disclose that communication made. He is also not in disclosing in this instant, because section 127 of the Evidence Act 1872 contain that “Section 126 will apply to Interpleader, Clerk or Servant of advocate”.
The 2ed instant is that the lawyer and his clerk is permitted to disclose the conspiring to commit robbery (under proviso 1 of the section 126), which T was charged. This proviso contained that, “nothing in this section shall protect from discloser, any such communication made any furtherance illegal purpose.
So according to this proviso the lawyer can permit to disclose the conspiring of robbery. And if lawyer can permit to disclose so the clerk can also permitted (under section 127).
On the other hand section 128 of the Evidence Act 128 is containing that, “The privilege not waived by giving voluntary evidence”. If we analyze this section we can say that, privilege is to belong to the client and the client can only alone waive it. The privilege is not lost b calling the adviser as a witness, unless the parties have the privilege question which relating to the confidential matter.
So lastly we can say that in this case the lawyer and his clerk disclose the fact of conspiring to commit robbery but are not permitted to disclose the terrorist attack.






Lecturer_ Barrister Tanvir Parves Sir