mohamed enterprises tanzania limited vs tanzania railways corporation and another 2023 tzhc 17953 24 may 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 7 OF 2021 MOHAMED ENTERPRISES (TANZANIA) LIMITED....... PLAINTIFF VERSUS TANZANIA RAILWAYS CORPORATION.............. 1st DEFENDANT THE HON. ATTORNEY GENERAL.......................... 2nd DEFENDANT RULING Date of Last Order 23.05.2023 Date of Judgment: 24.05.2023 Before: Mambi, J. This Ruling is in respect of a preliminary objection raised by the defendant objecting the admission of the computer printout (data message) retrieved from the computer system. Earlier, the plaintiff witness prayed to exhibit the document that is in form of electronic document but the defendant objected the admission of that document. The defendant argument was based on the fact that the plaintiff did not attach an affidavit to the document to prove its authenticity. The learned State Attorney Mr. Elias Mwendwa was of the view that admission of electronic evidence retrieved from the computer printout must be accompanied by an affidavit. i In response, the plaintiff Counsel Ms Neema Mahunga in collaboration with Ms Zakiya Ally contended that the law under section 18 (1) of the Electronic Transaction Act (ETA) Cap 442 [2015] allows the witness to tender the document that is in electronic form. Ms Neema was of the view that the State Attorney for the defendant has not mentioned the section that bars admission of data message without an affidavit. Ms Neema further submitted that, the witness is the custodian of the document and his testimony was given in this court under the oath. She was of the view that an affidavit is a testimony in a written form. She averred that the witness before this court has already taken an oath and has established the grounds and foundations for admitting the data message. The learned Counsel for the plaintiff was also of the view that, where the witness wants to rely on data message, but he was not the originator of the such data message he has to swear an affidavit to show the authenticity. She argued that, in this case the witness has testified he has retrieved the document from the system that is well protected as he testified for the plaintiff. Substantiating her argument, the learned counsel for the plaintiff submitted that the admission of electronic evidence is guided by section 18 of the Electronic transactions Act, Cap 442 [2015]. She was of the view that, under section 18 of the Electronic Transactions Act, Cap 442 [2015] there is nowhere the issue of requirement of affidavit is mentioned. The learned State Attorney had nothing to add in his rejoinder apart from insisting on his objection he raised. 2 Since the parties raised a crucial legal issue on admissibility of electronic evidence and challenges emanating from the rapid development of Information and Communication Technologies (ICTs) I decided to make a thorough research before I made my final decision. I have carefully considerably gone through the point of preliminary objection. I have also keenly gone through the submission by both parties. In my considered view the main issue is whether the admission and admissibility of electronic evidence from an electronic document or data message retrieved from the computer system mandatorily require an affidavit to prove authenticity. In other words the issue is whether the witness before tendering electronic evidence is required to swear an affidavit and accompany such affidavit to prove authenticity of electronic document or electronic evidence. Before I address the main issue arising from the preliminary objection it is pertinent to define the word "authenticity" under this digital era. Briefly, the term "authenticity" in an electronic environment is used to describe whether the document or data is genuine or the document (in the case of digital evidence/data) matches the claims made about it. In other words, authenticity is the capacity to prove that the digital object or evidence is what it purports to be. This means that authenticity is related to an assentation that data has not been altered/manipulated, replaced or corrupted. In other words, the authenticity of a digital document is a test checking whether the document is, in fact, what it claims to be and this test is a pre-condition to the goal of admissibility. In this regard, Trustworthiness of e-evidence is built on the foundation of two qualitative dimensions, namely, reliability and authenticity of such evidence. 3 The challenge that may now be faced by the court is that admissibility and evidentiary rules for electronic evidence must accommodate the automated record-keeping systems of sophisticated technology. With the development of Information and Communication Technologies (ICTs) parties in both criminal and civil cases and any legal proceedings are now relying on the evidence extracted from computer systems to prove their cases. However, the challenge is, how to compliment the admissibility of electronic evidence with our statutory rules and court procedures. It should also be noted that a decade or more later or even before a decade, computer technology raises evidentiary concerns that extend far beyond the mere admissibility of a printout of business activity. It is indisputable fact that advances in computer technology have led to the use of various digital techniques in the presentation of evidence to the courts. There is no doubt that one day, the computer revolution may well lead to simulations and reconstructions capable of deciding ultimate facts, rendering a trier of fact redundant. In this regard it is nearly impossible in today's information-technology-driven society to encounter a tortious liability, civil liability or criminal liability that does not have a digital dimension. Consequently, courts must satisfy themselves as to the reliability, integrity or authenticity of computer generated evidence or data message, which is often both highly probative. I am aware of the position of the law that before being admitted, electronic evidence or digital evidence may need to be authenticated that is, the proponent or witness of the evidence must make a presentation sufficient to support a finding that the evidence is what it purports to be. Indeed the rule on the requirement of authenticity means that there is evidence 4 sufficient to support a finding that the matter in question is what its proponent claims. The rationale' is simple that computer evidence can be easily and potentially modified, overwritten or deleted, thus posing challenges where sources of digital information must be authenticated and verified. The issue on how to conduct authentication, depends on the type of evidence and the availability of witness with knowledge of the item in question. Generally, the person seeking to introduce an e-document/e- evidence or data message in any legal proceeding at any level of the court has the burden of proving its authenticity or its trustworthiness. It is trite law that the authenticity of computer-generated and computer- stored information as part of electronic evidence is potentially open to security vulnerabilities in operating systems and programs that could give rise to threats to the integrity or authenticity of the digital information. In order for evidence such as electronic evidence to be admissible in court, the proponent/witness of the evidence must establish that no aspect of the evidence is suspect of untrustworthy. For example, for a digital record to be admissible, the court would have to be convinced that the record or electronic evidence was indeed generated by the individual who is purported to have authored the record. In my view, for electronic evidence to be deemed reliable, there must be nothing that casts doubt about how the evidence was collected and subsequently handled. It should also be noted that the admissibility of computer-generated information (such as log file records) detailing the activities on a computer, network, or other device may be open to challenge when the system generating the information does not have robust security controls. See Re VeeVinhnee, 5 Debtor American Express Trave! Related Services Company, Inc v VeeVinhnee, 336 BR 437(9thCir BAP, December 16, 2006). The question to be answered is that does a witness who wants to exhibit or tender electronic record or data message/electronic evidence needs to present an affidavit or the certificate in court that confirms the authenticity of the evidence produced?. In other words, is there any doubt authenticity of the evidence that is being produced, the manner in which it was obtained or the device where it was stored? The issue generally revolves around whether the plaintiff has complied with the requirements provided by the legal provisions under the Electronic Transactions Act, Cap 442 [2015]. The question is, is there any mandatory legal requirement, for producing an affidavit or Certificate to authenticate e-evidence. In practice it could be yes, but there is no any provisions of the law that oblige the witness or any person relying with a data message or electronic evidence to produce an affidavit or certificate. Most jurisdictions have legal requirements that provide the grounds for admissibility of digital evidence in legal proceedings. The position on the admissibility of electronic or digital evidence in our country has now been cleared by the law under the Electronic Transactions Act (ETA), Cap 442 [2015]. For easy reference I wish to reproduce the relevant section of the ETA in Tanzania that deals with admissibility of electronic evidence as follows. "18.-(1) In any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibility of data message on ground that it is a data message. 6 (2) In determining admissibility and evidential weight of a data message, the following shall be considered- fa) the reliability of the manner in which the data message was generated, stored or communicated; (b) the reliability of the manner in which the integrity of the data message was maintained; (c) the manner in which its originator was identified; and (d) any other factor that may be relevant in assessing the weight of evidence. (3) ....... " (4) . Reading between the lines on the above important provisions of the law, there is no legal requirement of producing affidavit or certificate for authentication of electronic evidence before that evidence is admitted. The provision of the law (Cap 442) section 18 (2) provides on the modes on how electronic evidence can be authenticated but the same provision neither mentions an affidavit nor certificate as I highlighted below. I am aware that some decisions of the court have expressed the requirement of the an affidavit and authenticity of electronic certificate for. In other jurisdictions the courts have held that the applicability of requirement of affidavit or certificate being procedural for authenticity can be relaxed by the court wherever interest of justice so justifies. See Shafhi Mohammad v/s State of Himachal Pradesh 2018 AIRfSC) 714 7 There is no doubt that determining the authenticity or reliability of computer evidence or data message before such evidence is regarded admissible as required by the law under section 18 of the ETA in Tanzania and in other countries with similar laws might be a hard task for both parties and the court. As a starting point the court might follow the common law presumption underscored by Lord Stephen Brown J. in Castle v. Cross [1984] 1 WL 1372 AT 1377B. The court in this landmark case for presumption of authenticity of electronic evidence categorically stated that, "In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at that material time". On top of that, the same provision of the law that is section 18 (2) (d) of the Electronic Transactions Act (Cap 442) enjoins the court with discretionary powers to decide whether electronic evidence is admissible or not without requiring one to produce an affidavit or certificate. That section provides that; "18.-(1) In any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibility of data message on ground that it is a data message. (2) In determining admissibility and evidential weight of a data message, the following shall be considered- d) any other factor that may be relevant in assessing the weight of evidence". The words "any other factor that may be relevant in assessing the weight of evidence", means the court may use its discretion and consider other factors and conclude that the evidence is authentic and reliable. More specifically, section 18 (3) provides for the manner on how 8 authenticity of electronic evidence can be proved. That section provides that; "(3) The authenticity of an electronic records system in which an electronic record is recorded or stored shall, in the absence of evidence to the contrary, be presumed where- (a) there is evidence that supports a finding that at all material times the computer system or other similar device was operating properly or, if it not affect the integrity of an electronic record and there are no other reasonable grounds on which to doubt the authenticity of the electronic records system; (b) it is established that the electronic record was recorded or stored by a party to the proceedings who is adverse in interest to the party seeking to introduce it; or ; (c) it is established that an electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not record or store it under the control of the party seeking, to introduce the record. (4) For purposes of determining whether an electronic record is admissible under this section, an evidence may be presented in respect of any set standard, procedure, usage or practice on how electronic records are to be recorded or stored, with regard to the type of business or endeavors that used, recorded or stored the electronic record and the nature and purpose of the electronic record" In other words the above section sets three presumptions on authenticity to be considered by the court. Those presumptions on the authenticity of electronic or digital evidence are; Firstly; the cpurt need to satisfy itself from either the evidence of the witness or on its discretion that the computer system or other similar device was operating properly or, if not, it did not affect the integrity of an electronic record and there are no other reasonable 9 grounds on which to doubt the authenticity of the electronic records system, Secondly, it must be established that the electronic record was recorded or stored by a party to the proceedings who is adverse in interest to the party seeking to introduce it; Thirdly; It must be established that an electronic record was recorded or stored in the usual and ordinary course of business... This means that the court is empowered to use its discretionary powers on Presumptions as to when evidence can be admissible and whether the evidence is authentic or reliable. It is up to the judge or magistrate to use his or her discretionary powers provided by the law in determining what will be admitted under the law. It should also be noted that admissibility of document is one thing and its probative value is quite another thing. See State of Bihar Vs Sri Radha Krishna Singh 1983 AIR 684. Courts need to satisfy themselves as to the authenticity or reliability of computer generated evidence or digital evidence, which is often both highly probative. In my view, the party seeking to rely on electronic evidence may be required to demonstrate its authenticity in any way as the court deems fit or in line with the relevant provisions of the law. For example the party may be required to lay foundation by explaining on how that evidence was generated and how was maintained or the party may submit metadata or seek an appropriate legal order to obtain additional data from the computer system. The foundation testimony must satisfies the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission. 10 In my view the manner of authenticating electronic evidence depends on the type of evidence and the availability of witness with knowledge. In other words the authenticity of computer-generated records or any electronic evidence is generally shown through the testimony of a witness with knowledge of how the records are recorded, stored and maintained. Over the world, courts are struggling to come up with foundation requirements that will permit the admission of relevant, computer generated evidence or digital evidence and, at the same time, protect the opposing party against human or machine error and unreliability. It is trite law that in the absence of evidence to the contrary, the courts will presume that mechanical instruments where evidence was obtained were in order at that material time. See MUSA ZAMBI VS. ERICK MINGA, CIVIL APPEAL NO 13 of 2019 at Mbeya. I am of the considered view that Courts may allow authentication of computer-generated evidence or any electronic evidence by a person who has knowledge of the particular record system. See United States v. Miller, 771 F. 2d1219, 1237 (9th Cir. 1985. This means that since the witness in our case informed the court the way the document was reproduced from the computer system that was secure, it was satisfied that there was "substantial compliance" with Section 18 , of the ETA, Cap 442 [2015] as a competent officer had testified that the electronic document/data ,message was e authentic. In this regard an affidavit or a certificate is not required to be produced as the plaintiff officer was able to testify with regard to the electronic documents because he was in charge of the operation of the company affairs. What is important in my view is the court to satisfy itself on the witness ability to convince the court that ii digital evidence is worthy of reception. In this regard admission into the court is dependent on the qualifications and competence of the tendered expert (simply with first-hand knowledge), the skill and knowledge of the party in leading such evidence and the quality of the digital evidence itself. It should also be not that the court cannot move suo motto to require an authenticity of electronic evidence unless the party has challenged the admissibility of that evidence. In a persuasive decision of the court in Standard Chartered v Mukah Singh [1996] 3 MU 240r the court held that: "it was only if the admissibility of the evidence was challenged, then it would be necessary the party to authenticate electronic evidence" Generally, witnesses who testify to the authenticity of computer records need not have special qualifications. In most cases, the witness does not need to have programmed the computer himself or even understand the maintenance and technical operation of the computer. See United States 14 Salgado, 250 F.3d 438, 453 (6th Cir. 2001). In my view the requirement of section 18 of ETA could be satisfied by calling a witness who was familiar with the computer and who knew what it did and who could confirm that'it was operating properly at the relevant time. As I observed earlier that the authenticity of computer-generated records or data message can be proved or shown through the testimony of a witness with knowledge of how the records are recorded, stored and maintained. However, if the court find it necessary to do so, it may in certain circumstance require an affidavit or 12 certificate for authentication though there is no legal requirement for the party to do so. Now coming to our case at hand, since the witness has sworn and explained how the data message or electronic evidence was retrieved from the computer evidence without any manipulation or alteration, the requirement of authenticity under section 18 of ETA Cap 442 has been met. Indeed the foundation testimony of the witness has satisfied the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission. As I noted above, our laws are silent on the requirements of an affidavit to authenticate electronic evidence during court proceedings. Section 18 of the ETA specifies the procedure of proving the contents of electronic records but no mandatory requirement of certificate for authenticating e­ evidence. The provision of the law on the requirement of an affidavit or certificate for authentication of electronic evidence may be necessary for the production of electronic evidence since it provides a foundation on the basis of which evidence can be admitted, evaluated and given evidentiary weight. This in my view can also promotes certainty and uniformity without excessively relying on judicial discretion. However, even if the requirement of an affidavit or certificate as a rule of admissibility and authentication of electronic evidence may be justified, it would in my view still not hold true or adequate as conclusive proof in every circumstance. The legislators are advised to reform the laws to require an affidavit or certificate in certain cases where it is required to do so. The relevant authority such as the court • and other relevant authorities may also consider developing rules that provide for. standards and guiding principles 13 or foundations on admissibility and authenticity of electronic or digital evidence in court proceedings. The proposed legislation, Regulation or Rules may set technologically neutral guiding principles and standards of proof of electronic authenticity and accuracy of electronic evidence that may be more stringent than other documentary evidence. In my view, it is be clear from the above discussion that the major jurisdictions of the world have come to terms with the change of times and the development of technology and fine-tuned their legislations. Furthermore, the exponential growth of technology makes it progressively exigent to constantly reform the law and bring it in line with evolutionary technological innovations which could not be contemplated at the time of making the law. Therefore, it is the need of the hour that there is a relook at Section 18 of the ETA Cap 442 introduced 8 years ago and which has created a judicial turmoil, with the law swinging from one extreme to the other. Additionally, apart from the obvious legislative introductions within the content of the certificate to make it more all-encompassing it would also be fruitful to make provisions for the Court to be able to procure additional evidence. In my view, it is clear from the above discussion that the major jurisdictions of the world have come to terms with the change of times.and the development of technology and fine-tuned their legislation. The exponential growth of technology especially Information and Communication Technologies (ICTs) makes it progressively exigent to constantly reform the law and bring it in line with evolutionary technological innovations which could not be contemplated at the time of making the law. It should be re-emphasized that In a world which is increasingly dependent on evolving forms of technology to facilitate 14 administration of justice, communication, business, , and other related transactions, it is critical for the legal system to grow and adapt to the changes around. Indeed the plaintiff witness in our case in his evidence clearly explained that the computer where the document was generated was operating properly at the relevant time when the electronic evidence was retrieved. I am thus in agreement with the learned Counsel for the plaintiff that the requirements of section 18 of the ETA has been met and the e-document (data message) should be admitted and I hold so. From the reasons stated above, I am of the settled view that the preliminary objection raised by the defendants on the admissibility of electronic evidence has no merit. In the premises, I overrule preliminary objection raised by the defendant and order the matter to proceed on the basis that the document objected is authentic. I make no orders as to costs and each party to bear its own costs. Mam bi Judge 24.05. 2023 Ruling delivered in Chambers this 24h Day of May 2023 in presence of both parties. __ A _ ___ . Mambi Judge 24.05. 2023 15