nic bank t ltd formerly known as saving and finance commercial bank ltd vs wilson tarimo 2012 tzhccomd 60 9 august 2012

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT MWANZA COMMERCIAL CASE NO.6 OF 2011 NIC BANK (TANZANIA) LTD (Formerly known as SAVINGS AND FINANCE COMMERCIAL BANK L T D )..............................................PLAINTIFF VERSUS WILSON TARIMO............................................................. DEFENDANT Date of last Order: 10/02/2012 Date of final submissions: 09/03/2012 Date of Ruling: 09/08/2012 RULING MAKARAMBA, J.: In this matter this Court is being asked to determine whether a witness who did not prepare a document, a Bank Statement, may refresh his memory by using that document, which is in possession of the Bank, where the witness is employed, although the witness himself is not the maker of the document. This issue arose out of an objection by Mr. Dennis Kahangwa, learned Counsel for the Defendant to the attempt by Mr. Donatus Richard (PW1), the Branch Manager of NIC Bank Ltd (the Plaintiff) at Mwanza while testifying in examination in chief to refresh his memory by referring to a Bank Statement in possession of the Plaintiff's Bank. Mr. Dennis Kahangwa, objected against such course of action arguing that Page 1 of 17 PW1 was not a maker of the document he was seeking tio refresh his memory by referring to it. Mr. Kahangwa argues that in terms of section 168 of the Tanzania Evidence Act PW1 cannot refer to the document to refresh his memory. Following the objection this Court accordingly asked the learned Counsel to make submissions on that point of law. Mr. BYAMUNGU, made submissions for the Plaintiff and Mr. DENNIS KAHANGWA, submitted for the Defendant. As a way of assisting and directing the submissions this Court framed the following issues on which the learned Counsel by consent premised their written submissions, namely: 1. Whether a witness may testify under examination in chief by refreshing his memory by referring to any writing made by himself at the time o f the transaction concerned? 2. Whether a statement or "any writing made by himself at the time o f the transaction" includes any writing which is in the possession o f the bank? 3. Why did the drafters o f the legislation use the word "himself" and not a "person" under section 168 (1) o f the Evidence Act? The gist of the objection by Mr. Dennis Kahangwa, learned Counsel for the Defendant is that Mr. Donatus Richard (PW1) was not the maker of the Bank Statement he was seeking to refresh his memory on since at the time Page 2 o f 17 the Bank Statement was prepared, PW1 was not yet an employee of NIC Bank (T) Ltd, and therefore by virtue of section 168 of the Tanzania Evidence Act, Cap.6 R.E. 2002, PW1 cannot refresh his memory by referring to the Bank Statement. In the course of making his reply submissions, Mr. Byamungu, learned Counsel for the Plaintiff argued that it was an error for this Court at this stage to entertain the objection raised by the learned Counsel for the Defendant, and therefore the objection ought to be dismissed outright in terms of section 176 of the Tanzania Evidence Act. Mr. Byamungu argues further that the parties or their agents are expressly prevented from objecting to any questioning or order by the Court when the witness is under examination. According to Mr. Byamungu, section 176 of the Tanzania Law of Evidence Act is word to word in pari materia with section 165 of the Evidence Act of India. Section 176 of the Tanzania Evidence Act provides as follows: "176.(1) The court may, in order to discover or to obtain proper proof o f relevant facts, ask any question it desires, in any form, at any time, o f any witness or o f the parties about any fact relevant or irrelevant and may order the production o f any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order nor, without the leave o f the court, to cross-examine any witness upon any answer given in reply to any such question: (2 )...... (not relevant) (the emphasis is o f this Court) Page 3 o f 17 Mr. Byamungu supports his argument by referring to Sir John Woodroffe & Syed Amir Ali's Law o f Evidence, Seventeenth Edition, Vol. IV at page 6248 thus: "It is obvious that the judge contemplated by the section is not a mere umpire a t a wit combat between the lawyers for the parties whose only duty is to enforce the rules o f the game and declare at the end o f the combat who has won and who has lost. He is expected, and indeed it is his duty, to explore all avenue open to him in order to discover the truth and to that end. Question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided." (the emphasis is o f this Court). Mr. Byamungu submits further that upholding the objection by the defence to the reference by the witness and reliance on the statement of the bank in the possession of the witness would amount to preventing the witness from answering the questions of the judge. The Court record does not show that the learned Counsel for the Defendant made any rejoinder submissions in answer to the objection raised by Mr. Binamungu, learned Counsel for the Plaintiff in the course of his reply submissions with respect to the reach and import of section 176 of the Tanzania Evidence Act. The gist of the argument by Mr. Binamungu is that section 176 of the Tanzania Evidence Act places a bar on the parties or their agents from making any Page 4 of 17 objection to any question asked by the court or to cross-examine any witness upon any answer given in reply to any such question. Mr. Byamungu, rightly submitted, that as a matter of general principle of law enshrined in section 176 of the Tanzania Evidence Act, either party is not entitled to make any objection on the questions set by Court during examination in chief. The Defendant is only allowed to disqualify the witness' testimonies by cross examining a witness. However, as an exception to the general rule, it is only with the leave of Court that a party may be entitled to raise an objection on questions set by the Court. From the court record, it is the Court which allowed both learned Counsel for the parties to argue on the legal issues emerging during examination in chief. In the course of arguing those, the learned Counsel for the Defendant objected to the Plaintiff's prayer to have his witness (PW1) refresh his memory on a Bank Statement. This Court accordingly granted leave to both learned Counsel for the parties to argue on those legal issues and the preliminary objection that the learned Counsel for the Defendant raised against attempt by PW to refresh his memory by referring to a Bank Statement on. Leave to entertain the preliminary objection was therefore duly granted by this Court to the learned Counsel for the parties. In the course of his reply submissions, the learned Counsel for the Plaintiff has raised what seems to be a preliminary objection to the objection raised by the learned Counsel for the Defendant. The learned Counsel for the Defendant had opportunity to reply but did not file any rejoinder. The effect is that he is taken to have conceded to what was raised by the learned Counsel for the Plaintiff. I take it that the issues Page 5 of 17 raised by the learned Counsel for the Plaintiff raised in the course of his reply submissions with regard to section 176 of the Tanzania Evidence Act amplify on the powers a judge has in the course of examination. Let me now turn to consider the substance of the objection the learned Counsel for the Defendant raised on the issue of a witness who is not a maker of a document refreshing his memory by referring to that document. Mr. Byamungu contends that PW1 qualifies under section 168(1) of the Tanzania Evidence Act to refer to any document possessed by the bank because the bank statement referred to is a progressive and dynamic document updated on daily basis and charges are calculated periodically under PW l's management. The witness being the Branch Manager in charge of the Branch that generated the statement, Mr. Binamungu further argues, cannot avoid being its maker or at least the same being made under his direction. The bank records are kept in electronic form and most of the updates are automatic in response to the pre-set system under PWl's management and examining and updating of the bank statement is a dynamic and progressive duty of PW1, Mr. Binamungu added. Mr. Byamungu argues further that the word " himself" as used in section 168(1) of the Tanzania Evidence Act refers to 'witness/' and not "legal entity." A legal entity can only testify through its authorized officers conversant with the facts of the case on the entity's behalf, Mr. Binamungu clarified. It is therefore not the officers who testify but the legal entities through its officers, Mr. Binamungu surmised. It is illogical to allow legal entities to testify but prevent them from refreshing their memory on their Page 6 of 17 own writings, Mr. Byamungu reasoned and cited Sir John Woodroffe & Syed Amir All's, Law of Evidence, Seventeenth Edition, Vol. IV (supra) at page 6206 thus: (i) Where the writing serves to revive or assist the memory o f the witness and to bring to his mind a recollection o f the facts; (ii) Where a witness recollects having seen the writing before, and though he has no independent recollection o f the facts mentioned in it, yet remembers that, at the time he saw it, he knew the contents to be correct; (Hi) Where it brings to the mind o f the witness, neither any recollection o f the facts mentioned in it, nor any recollection o f the writing itself, but which nevertheless enables him to swear to a particular fact from the conviction o f his mind on seeing a writing which he knows to be genuine; In response to the submissions by Mr. Binamungu, Mr. Dennis Kahangwa learned Counsel for the Defendant argues in opposite direction saying that a body corporate is recognized by law as a person and this is in terms of section 4 of the Interpretation of the Laws Act, Cap.l R.E 2002. It is an artificial or a legal person. Legal rights and duties are attached to the body corporate although it has to have a natural person to run the day to day activities and that a person will be held accountable for the actions of Page 7 of 17 the corporate body. The legal person may only testify through its authorized officers, Mr. Kahangwa further submits, and add that in terms of section 168(1) of the Tanzania Evidence Act, the term " himself" does not include a body corporate, as it has no capacity to testify or refresh its memory in Court rather it is through its Principal Officers. Mr. Kahangwa argues further that by virtue of section 8 of the Interpretation o f the Laws Act, Cap. 1 R.E 2002, the word " him self" when used in any statute connotes or refers also to the feminine gender but does not include a legal entity or person. According to Mr. Kahangwa however, PW1 does not qualify to refresh his memory in respect of the disputed document as he does not meet the qualification prescribed under section 168 (1) of the Tanzania Evidence Act, which is that the statement must have been made by himself at the time of the transaction or soon afterwards. In support of this contention, Mr. Kahangwa cites the Law of Evidence, 2002, 17th Edition, Volume 4 by Sir John Woodroffe and Syed Amir Alt's commenting on section 159 of the Indian Evidence Act {in pari matiria with section 168(1) of the Evidence Act of the Laws of Tanzania), at page 6205 thus: "Before a witness is allowed to refresh his memory from any writing made by him, the requirements o f section 159 should be complied with. It must be shown that the writing was made by the deponent a t the time when he examined the complaint, or soon after, that the Court considers it likely that the Page 8 of 17 transaction a t that time was fresh in his memory" (emphasis is o f this Court) Mr. Kahangwa submits further that, a witness may refresh his memory by referring to any writing made by any other person as per section 168(2) of the Tanzania Evidence Act, Cap.6 R.E 2002. According to Mr. Kahangwa, it is clear that at the time when the transaction on the disputed document was made, PW1 was not an employee of the Plaintiff in which it would have been considered that at that particular time, the witness examined, knew it to be correct when the facts were fresh in his mind as it was expounded in the case of MANCHIDA V. STATE (1972) WLN 867 (Raj). Mr. Kahangwa also refers to the case of RAM CHANDRA V. EMPEROR AIR (1930) Lah 379 where it was stated that: "It is immaterial that the document to which the witness refers in Court was not printed b y the witness him self or in his presence. I t is essential only that he should have read it a t or soon after the transaction to which it relates, "(the emphasis is o f this Court). Mr. Kahangwa submits further that, considering that PW1 was not employed by the Plaintiff at the time of transaction, he had not had the opportunity to read the document (bank statement) at or soon after the transaction took place. Mr. Kahangwa adds that the writing can be used to refresh the witness memory only where it has been made at the time of Page 9 of 17 the fact in question or at the most so recently afterwards as to render it probable that the memory of the witness had not become defective. The controversy in this matter revolves around the interpretation of the provisions of section 168 of the Tanzania Evidence Act, Cap.6 R.E. 2002, which stipulates as follows: "168.(1) A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. (2) A witness may, while under examination, refresh his memory by referring to any writing made by any other person and read by the witness within the time referred to in subsection (1), if when he read it he knew it to be correct, "(the emphasis is o f this Court). The provisions of section 168(1) and (2) of the Tanzania Evidence Act quoted above in my view are very clear and unambiguous and do not therefore require any stretched interpretation by this Court. The law allows a witness while under examination to refresh his memory. The witness can refer either to any writing made by himself at the time of the transaction concerning which he is questioned or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. Such witness may also refresh his memory by referring to any writing made by any other person and read by the witness Page 10 of 17 within the time of the transaction or soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. Both learned Counsels are in agreement that the word 'himself' appearing in section 168 of the Tanzania Evidence Act cited above, does not refer to a legal entity or "body corporate!' but to a "witness." This position I respectively take to be a correct rendering of the import of the word " him self" in section 168 (1) of the Tanzania Evidence Act. In the context in which the word "himself" is used in that section, which is in relation to refreshing memory through a document or a writing it therefore intended to be referring to a witness and not to a legal entity. I also seek comfort in the words "refresh his m em ory" in that section to buttress the point that a legal entity does not have a memory of itself to refresh. This can only happen through its duly authorized officers, who have body, soul and spirit as repository of the memory on behalf of the legal entity they represents. It is through the revelation of that memory that the legal entity is thereby bound. Furthermore, the term " writing made b y him self" \n section 168 of the Tanzania Evidence Act in my considered view, would suggest a person capable of making a document or a writing, which cannot but mean a natural person and not a artificial person. As I intimated to earlier in this ruling, an artificial person or legal person is not endowed with the capacity to make documents or writings for itself. It is only through human beings, who in the course of concluding transactions on behalf of the legal entity are capable of generating various types or documents and writings such the bank statement at the centre of the controversy in the present matter. Page 11 of 17 It is worth noting also that the general principle as regards the common law doctrine of refreshing memory is that a witness is not allowed to read from his or her evidence in the form of a statement or other document prepared for the purpose of litigation. A witness is only allowed to refresh his memory from the statement before coming to Court to testify. I understand however that, witnesses often experience difficulty in recollecting the events to which their evidence relates, especially when events took place a long time ago. That is why the law allows witnesses under examination in Court to refresh their memory by referring to a document made by themselves or from the writing made by another person at the time of the transaction or soon afterwards. This comes out very clearly under section 168 (1) of the Tanzania Evidence Act of the laws of Tanzania, under which a witness may, while under examination, refresh his memory from any writing made by himself at the time of the transaction concerned or soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. PW1 did not make the Bank Statement. He does not therefore qualify under section 168(1) of the Tanzania Evidence Act to refresh his memory on the bank statement. In case the writing was made by someone else within the aforesaid time, in terms of section 168(2) of the Tanzania Evidence Act it must have been read by the witness or read out in his presence within the aforesaid time and known to him to be correct. That means, the writing must have been read out in the presence of the witness when the facts were still fresh in the memory of the witness and the witness had recognized the accuracy Page 12 of 17 of the writing as read to him. The main controversy surrounding section 168(2) of the Tanzania Evidence Act in so far as the time within which it can be said that the writing was still fresh in the memory of the witness is with regard to determining how "so soon afterwards?" law enjoins the court to determine the lapse of time which may hamper witness memory seeking to refer to a writing made by another person to refresh his memory while under examination. This issue arises from the phrase "or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory' appearing under section 168(2) of the Tanzania Evidence Act. The phrase "so soon afterwards!' therefore in my view refers to the time lapse between the events and the making of the document which must be as short as possible, a period which the court considers it likely that the transaction was at that time fresh in the witness memory. A good example on time lapse is found in the case of ANDERSON vs. WHALLEY (1852) 3 Car & Kir 54 where it was held that: "...entries in a ship's log-book made by the mate and verified by the captain about a week later could be used to refresh the memory o f the latter." (the emphasis is of this Court). In the above cited case, a week was taken to be a shorter time within which entries in a ship's log-book made by a shipmate and verified by the captain could be used by the captain to refresh the captain's memory. In the present case the Bank Statement which is at the centre of the legal wrangle relates to transactions concluded in 2007, three years before PW1 was employed by the Plaintiff's bank, which was on the 2nd Page 13 of 17 August 2010 as per his testimony. The issue is whether three years can be said to be "so soon afterwards!' or a shorter period of time for that matter for the transaction to still be fresh in the memory of PW1. It should be noted here and as Mr. Binamungu rightly submitted a Bank Statement is a dynamic document. A Bank Statement exists in the form of electronic data stored in the Plaintiff's Bank computer system and which can be reproduced at any time as printout on demand. A bank statement as computer printout of electronic data is therefore a form of electronic documents which falls within the broader category of Electronic Information System (EIS). In this regard therefore a Bank Statement exists in the electronic form from which computer printouts can be made any time on demand and signed by responsible officers of the issuing institution and in this regard the Plaintiff's Bank. It will therefore be stretching the imagination to try figure out at what point in time can a computer printout of a Bank Statement be said to have been made or written. In my view section 168 of the Tanzania Evidence Act is still lagging behind time of the recent amendments to the Tanzania Evidence Act recognizing electronic documents particularly printout of banker's books and evidence by videoconference. A Ban Statement being a computer printout of an electronically stored data in the Plaintiff's Bank computer system is a dynamic document which gets updated automatically and therefore this Court finds that three years in so far as a computer printout of such a dynamic document such as a Bank Statement fits squarely within the category of "so soon afterwards that the court considers it likely that the transaction Page 14 of 17 Page 16 of 17 was a t that time fresh in his memory" under section 168(2) of the Tanzania Evidence Act. PW1 therefore qualify under section 168(2) of the Tanzania Evidence Act to refresh his memory by referring to the Bank Statement. I should point out here that much as the Bank Statement was prepared by another person three years before PW1 joined the Plaintiff's Bank, the nature of the Bank Statement is that it gets to be updated automatically by the Plaintiff's Bank computer systems. As such it will not be feasible to ascribe to any particular person the credit of being the maker of the document or the writing. In my considered opinion, PW1 like any of the other employees of the Plaintiff's Bank who preceded him is charged with the management of the affairs of the Plaintiff's Bank including customers' bank statements. Each time the Bank Statement gets to be updated automatically by the Plaintiff's Bank computer system, PW1 like the others who preceded him, are converted into "makers" of the Bank Statement, if you wish. The memory becomes that of the computer and not that of the person generating the electronic document. I should however, emphasize here that I have taken exception to the general rule as regards refreshing memory as developed under common law in view of current developments in the field of the law of evidence in so far as admissibility of electronic documents is concerned which could not have been contemplated when the Tanzania Evidence Act was received in the Territory by way of India. The law now recognizes as evidence computer generated or printout of electronic document such as banker's books. Otherwise this court is extremely cautious particularly when dealing with the issue of witnesses refreshing their memory by referring to documents Page 15 of 17 or writing themselves did not prepare so as to avoid running the risk of admitting hearsay evidence. Allowing PW1 to refer to a document prepared in 2007 or 2008 while he was not an employee of the Plaintiff's Bank to refresh his memory should not be taken as opening the "pandora's box" for all sorts of documents or writing to be admitted for purposes of memory refreshing if they do not fall within the ambit of the law. The decision here is limited only to refreshing memory by referring to Bank Statement as a dynamic document generated by computer system. In the event and for the foregoing reasons the preliminary objection raised by the learned Counsel for the Defendant fails. It is hereby accordingly dismissed with costs which shall be in the cause. PW1 is hereby allowed to refer to the Bank Statement in possession of the Plaintiff's Bank, which was prepared in 2007, to refresh his memory. It is so ordered. R.V. MAKARAMBA JUDGE 09/08/2012 Page 16 of 17 Ruling delivered this 09th day of August 2012 in the presence of Mr. Byamungu, Advocate for the Plaintiff and Mr. Kassim, Advocate for the Defendant R.V. MAK ARAM BA JUDGE 09/08/2012 Word count: 4,241 Page 17 of 17