20130728 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO. 29 OF 2011 EXIM BANK (T) LTD ............... . . ... . ...... . ... . PLAINTIFF VERSUS KILIMANJARO COFFEE COMPANY LIMITED.... DEFENDANT Ruling (24.07.2013 & 2.07.20131 Nyangarika, J. An objection has been raised by Mr. Martin Matunda, Learned Counsel for the defendant, against an application made by Mr. Kamala, Learned Counsel for the plaintiff, for tendering Print out statements extracted from an account operated by the defendant at the Plaintiff bank as an exhibit in court on two grounds; First is that PW1 who is also the Head of the Credit Department of the Plaintiff bank has not proved before this court that the Print out statements in the entries of the alleged bank accounts were made in the usual and ordinary books accounts of the Plaintiff bank in the usual and ordinary course of business of the bank and -that the statements were in the custody or control of the Plaintiff bank pursuant to Section 78 of the Law of Evidence Act (Cap.6 RE 2002). Second is that there is no proof that the printed out statements or documents were examined with the original entries and certified to be correct as required by Section 79 of the Law of Evidence Act (Cap 6 RE 2002). 1Page In rebuttal, Mr. Kamala, Learned Counsel for the Plaintiff has argued that since PW1 is now at the witness box and had taken oath, his testimony before this court is enough proof that the printed out statements are ordinary entries in its bank account in the course of the Plaintiff banking business, which are still in the custody or control of the Plaintiff's bank and therefore the provisions of Section 78 and 79 of the Law of Evidence Act has been fully complied with. In his brief rejoinder, Mr. Matunda, submitted that nothing has been said by Mr. Kamala regarding Section 79 of Law of Evidence Act and there is no certificate shown by PW1 to that effect. Mr. Matunda insisted that such a proof must come from PW1 [Plaintiff] and not from the bar. Our Law of Evidence Act is received from India where the Law of Evidence in India was promugulated in 1875, and therefore commentary and decided cases from India are very useful to our law of Evidence Act. The words or phrase "Banker's book" as referred under Section 78 and 79 of Law of Evidence Act, connotes book used in the ordinary business of a bank whether it is in daily use or kept for occasional references (See Asylum for Idiots v Handy Sides, 22, TLR 573, CA). Therefore copies of entries in the bankers books are prima facie evidence of the entries or of the matters, C" (c) The book is in the custody or control of the bank." In my opinion, "bankers books" includes ledgers, day- books, cash-books, account books, and all other books used in the ordinary business of a bank whether kept in the written form Or as print outs or data in a floppy, disc, tapes or any other form, of electro-magnetic data storage device. I have listened careful from our sound recording devises managed by our subscribers to the testimony of PW1 not once but again and again regarding the statements of accounts, which is the subject matter in this ruling, but I have not heard a single word from the mouth of PW1 saying that the statements of accounts sought to be tendered as exhibits were made in the usual and ordinary course of the Plaintiff's business and that those statements of accounts were in the custody or control of the Plaintiff's bank. To be precise, our sound recording devises have revealed that PW1 told this court upon being examined in chief by Mr. Kamala, Learned Counsel, as follows: Question number 1 by Mr. Kamala, Learned Advocate: Mr. Praveen, what are those documents? PW1 Answer: Statements of accounts of the company, that is, Kilimanjaro Coffee Company Limited. Question number 2 by Mr.Kamala, Advocate: It refers to which accounts Numbers? PW1 Answer: Account Nos. Sir is 0200212018. Question number 3 by Mr. Kamala, Advocate For which currency? 3IPage PW1 Answer: Tanzanian shillings. The second account No. is 300212026. This is in US Dollars. Account 300212001, this is in Tanzanian shillings. Question number 4 by Mr.Kamala, Advocate: Would you like these statements to be part of your evidence? PW1 Answer: Yes, I do. To the best of my construction of Sections 78 and 79 of Law of Evidence Law of Evidence, if a witness want to rely and tender print out statements of an entry or a copy of such print out statement, he must have proof that the book was at the time of making of the entry, one of the ordinary books of the bank and that the entry was made in the usual and ordinary course of business as well as that the book is in the custody or control of the bank. Now, the next question to be asked is, how such proof can be given in court? Sections 78 (2) of Law of Evidence Act, provides that proof may be given orally or by an Affidavit of a partner or officer of the bank. In the case of Trust Bank of Tanzania V. Le-Nlarsh Enterprises Ltd & 2 others Commercial Case No.4 of 2002(HC)(unreported), this court dealt with an issue as to whether or not a computer print out, is a banker book under the Law of Evidence Act and thus admissible and the presiding Judge in this case held, inter alia that the Law must be abreast of technological changes. However, in orbiter, the court observed that it would have been much better if the position were clarified beyond all doubt by Legislations rather than judicial intervention. 4Page It might appears that Written Laws (Miscellaneous Amendment) Act No. 2 of 2006 dealt with restrictive approach by allowing admission of electronic evidence and e-records in the banking business system under Bankers books pursuant to the Law of Evidence Act, (Cap 6 RE 2002), and I think what written laws (Miscellaneous Amendment) Act No.15 of 2007 did was only to amended Section 40 by adding Section 40A which now provides for the admissibility of electronic evidence in Criminal Proceedings. Therefore, critics have argued that the two amendments only dealt with admissibility of electronic evidence in banker's books in banking industry and criminal Law but did not categorically deal with admissibility of electronic evidence in civil cases generally. It must be born in mind that electronic evidence must be authenticated because of the potential for unauthorized transaction or of the processing of such evidence. There is also a need to know the history, source and custody of such kind of evidence. Therefore, the Law of admittance of electronic evidence in Civil Proceeding is still raw issue in Tanzania. Some critics also are of the view that the court may led the way by filling the lacunae left in the existing law in civil cases by setting down new rules for dealing with electronic evidence by taking into account the technological advancement. Lord Denning, in one of his address in the case of Carolyn Parker V. James Parker (1954) Page 15, observed, thus, "if we ever do anything which have never been done before we shall not 5 IPage Ed get anywhere as the law will stand still whilst the rest of the world goes on and that will be bad for both." Therefore since the prints out statements are to be certified and maintained by the bank in a written form, the following two conditions must be met: 1)The Print out statements must be accompanied with a certificate written at the foot of such print outs that it is a true copy of such entry and that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business as well as that such a book is still in the custody or controll of the bank. 2) A certificate that the Print out statements were obtained by electronic process which itself ensured the accuracy of the Print outs, dated and subscribed or signed by the Principal Accountant or Manager of the Bank. In the case of Lazarus Mirisho Mafie & Another V. Odilo Gasper Katenga @ Moiso Gasper, Comm. Case No.10 of 2008 (HC) (unreported), this court while dealing with an objection to admit an e-mails which is also an electronic evidence as an exhibit in court in civil proceedings, my brother Makaramba, .J must be a statement made by a declarant offered to prove the truth of its contents which excludes hearsay or covered by one of the exceptions to the hearsay rule. The other tests are that such e-evidence should pass the test of the original writing rule. This rule provide that a party relying on such evidence must be prepared to introduce an original, a duplicate original or be able to demonstrate that one of the permitted forms of secondary evidence is admissible. The last te.st is the need to balance its probative- values against the potential for unfair prejudice, or other harm. That is, a party who want to rely on such evidence must prove that the original is authentic in the form of audit trail and that the electronic evidence has not been altered since the date it was retrieved from the computer. Short of that, it was observed that such electronic evidence may be rejected by the court. In Lazarus case(supra), this court (Makaramba,J) refused to embark on judges made law as there was a view that the business of creating rules on admissibility and validity of electronically stored information should be left to the Legislature and found it unnecessary to refuse to construe and extend . the construction to cover electronically stored information developed by Section 3 and Section 36 of the Amending Act No.2 of 2006, which amended section 78 by adding Section 78A of Law of Evidence Act, which, now recognizes Computer print out as evidence. I am well aware of the observation of the Court of Appeal in the case of Tanzania Cotton Marketing Board V Cogecot Cotton 7lPage Li Company, SA (1997) TLR 165 (CA) that "the Law cannot be and is not ignorant of modern business practices (methods) and must not shut its eyes to the mysteries of the computers" but, the issue here is whether the Printout statements which are actually electronic documents or records originating from the bankers books are admissible as evidence in court in our case at hand. Of course, following the case of The Trust •Bank Tanzania Ltd (supra), Law of Evidence Act (Cap 6 RE 2002), has been amended by the written laws (Miscellaneous Amendment) (No.2) Act of 2006 and written Laws (Miscellaneous Amendment) Act No.15 of 2007 and it can be argued that its effect is that electronic records, including e-mail and print outs statements, in relation to the banking business are now admissible as evidence in courts. But, it is also argued that the above amendments does not provide for the admissibility or the receiving of electronic record in civil proceedings generally but only applies in criminal and banking business cases. There are two schools of thought lingering in this court on the issue. One is that termed as of "timid souls", which Labour on restrictive approach on admissibility and validity of electronic evidence and the other is those termed as of "bold spirits" that are of the view that the said amendments done to the Law of Evidence can be construed and extended so as to cover admissibility and validity of electronic evidence in civil cases as well generally, In India where we derived our Law of Evidence Act, for such Print outs statements to be admitted in evidence, there are some 8 I Page guidelines. I think it would have been better if those guide lines were assimilated or followed in our courts, as there must be proof describing a process or system used to produce a result in respect of electronic evidence and show that the process or system produced an accurate result. Therefore, a part from a certificate written at the foot of the print out that it is a true copy of such entry and that such an entry is contained in one of the ordinary books of the bank and was made in the usually and ordinary course of business and that such a book is still in the custody or control of the bank, there must be a further certificate to show that such print out statements were obtained by an electronic process • which in itself ensured an accuracy of the print out. Therefore, two certificates must be dated and subscribed by the principal accountant of the bank or manager of the bank with his name, signature and official title. , because a mere statement which certifies the print out as true copy without regards to the above guidelines may not be necessarily accepted as a certified copy (see United Bank Ltd V. N.0 Bank 1962 (325). Therefore, under the provisions of section 78 and 79 of Law of Evidence Act it is plain and unambiguous that electronic generated information in the form of print outs have to be accompanied by; a) A certificate to the effect that it is a print out of such an entry by the accountant or branch manager of the relevant bank. 9 1 Page IM b) A certificate by a person in charge of a computer system containing a brief discretion Of the Computer system and particulars of; The safeguards adopted by the system to ensure that data is entered or that any other operation is performed by an authorized persons, All safeguards adopted to prevent and detect an unauthorized change of data. The safeguards available to retrieve data that is lost due to systems failure or any other reasons. The manner in which data is transferred from the system to removable media like floppies., disks, copies or other electronic magnetic data storage devices. The mode of verification in order to ensure that data has been accurate transferred to such removable media. The mode of identification of such data storage devices. The safeguards to prevent and detect any tampering with the system and, Any other facts which will vouch for the integrity and accurate of the system. 101Page LI Lastly, there must be a further certificate from the person in charge of the Computer system to the effect that to the best of his knowledge and belief, such computer system, operated properly at the material time when he was provided with all the relevant data and the print out in question represent correctly or is appropriately derived from the relevant data. In the present case, there is no evidence led by the Plaintiff's Counsel or PW1 showing that the print outs statements originated from the Plaintiff's bankers book and that the bankers book was at the time of making of the entry they were in the ordinary books of the Plaintiff's bank. Further, there is no proof shown or statement given that the entries were made in the usual and ordinary course of business of the Plaintiff and that are still in the custody or control of the Plaintiff. Also, there is no evidence led by the Plaintiff's Counsel or PW1 or even a statement given that the Print out statements were examined with the original entries and were found to be correct, as well as certificate of Accountant or Manager and a certificate of the person who is the in charge of the Computer System containing a brief description of the computer system, particularly from where the print out statements were retrieved for purposes of authenticity showing that the Print out statements were not tempered with and are correct in every respect. I know that under UNCITRAL MODEL LAW on electronic Commerce, 1996, there a set of international accepted rules which provide for equal treatment for both paper based and electronic based evidence, but in our case at hand, even, the source and custody 11 I P a g e of the print out statements of account regarding the bankers book is not known as the Plaintiff's Counsel had not led PW1 to introduce some evidence regarding the source, history and custody or control of the electronic evidence sought to be tendered in court as exhibits. In a Nigeria case of Esso West Africa Inc. V. T. Oyeghola [1969] 1 NMLR 194 (supreme court) and Yesufu V. ACB [1976] 4 SC Reprint (a) 9-14, a bank statement was prepared by a machinist from the Ledger Card of the bank where the machinist obtained entries from day to day basis on bank vouchers. The Bank officer sought to tender print out Statements which he did not prepare or verify that they were correct. An objection was raised on the admission of the bank statements on the ground that the existence of the bankers book from which the entry were extracted was not established, neither was the custody and control which the examination of the original entries were established before admission was sought. In its decision, the Supreme Court of Nigeria sustained the objection and by obiter held that "it would have been much better, particularly with respect to a statement of account containing a book produced by a computer, if the position is clarified beyond doubt by Legislation as has been done in English Civil Evidence Act, 1968. In our case at hand, the tests provided for under Sections 78 and 79 of the Law of Evidence Act (Cap 6 RE 2002) have not been met by PW1 so as to admit the print out statements as exhibit in court. The objection is therefore sustained and the prayer to 12 1 P a g e tender Print out statements of account as sought by PW1 is hereby refused. Costs shall be in the cause. Order accordingly. K.M.Nyangarika, Judge 28th J 3089 - Words 13 1 P a g e