MTULYA 2

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) CIVIL CASE NO. 399218 OF 2022 1. THE BOARD OF TRUSTEES OF NATIOnKN SOCIAL SECURITY FUND K.......................... PLAINTIFFS 2. THE ATTORNEY GENERAL \ Versus M/S KI RIBO COMPANY LIMITED................................................. DEFENDANT RULING 01.10.2024 & 01.10.2024 Mtulya, J.: In the course of hearing of the instant case, Mr. Khalifa Byemerwa (PW1), a Compliance Officer working with the National Social Security Fund (the first plaintiff) - Tarime Branch Office prayed to tender two (2) documents to substantiate his testimony on arrears and penalties imposed by the first defendant to M/S Kiribo Company Limited (the defendant), viz. first, schedule for arrears of statutory contributions; and second, employers' penalty notification. In his testimony, PW1 had testified that the defendant had breached its statutory obligations by defaulting payment of members' statutory contributions hence the penalties were landed on her for declining the obligation. However, the prayer to tender the dual documents was protested by the defendant's learned counsel, Mr. Michael Mahende for reason that the authenticity of the documents is at faults. In order to validate his protest, Mr. Mahende had produced i two reasons, namely: first, the documents have no name of the institution; and second, the documents lack logo of the institution, the first plaintiff. In explaining his reasons of justification, Mr. Mahende submitted that he is well aware that the documents were system generated and an affidavit in support of the move was registered, but lacked necessary materials to display that they originated from the institution of the first plaintiff. In replying the point of protest, Mr. Kitiya Turoke, learned Principal State Attorney for the plaintiffs, submitted that Mr. Mahende has problem with the authenticity of the documents, but had declined to consider the provisions of section 64A of the Evidence Act [Cap. 6 R.E. 2019] (the Evidence Act) and sections 18 & 20 of the Electronic Transactions Act [Cap. 442 R.E. 2019] (the Electronic Act), which allow admissibility of electronic evidence, subject to the certificate of authenticity of the computer print-outs. According to Mr. Kitiya, the plaintiffs have filed an affidavit of Mr. Swalehe Abdurabi in compliance with the cited laws. In his submission, Mr. Kitiya stated that Mr. Swalehe Abdurabi is the one who had retrieved the documents from a computer as print-outs and PW1 has testified on the documents. In his opinion, the cited documents have the name of the institution NSSF, name of the defendant, registration number of the defendant, and resolve issues which had brought the parties into the current contest. Finally, Mr. Kitiya submitted that if Mr. Mahende has any questions related to authenticity of the documents, 2 may wish to raise them during cross-examination as PW1 is still in the witness box. In a brief rejoinder, Mr. Mahende submitted that Mr. Kitiya had declined to reply the issue of logo of the institution, while well aware that the issue of logo is distinct from the name of institution. I have read section 64A of the Evidence Act, sections 18 and 20 of the Electronic Act and a ruling of this court in Mohamed Enterprises (Tanzania) Limited v. Tanzania Railways Corporation & Another, Civil Case No. 7 of 2021, and found thorough conversations on interpretation of the newly introduced sciences of electronic evidence. Both the sciences and enactments were brought into trial in this court in the indicated precedent of Mohamed Enterprises (Tanzania) Limited v. Tanzania Railways Corporation & Another (supra). The precedent has detailed and extensive conversations on application of section 18 of the Electronic Act and a bundle of precedents regulating disputes of this species. This court in the case had admitted documents retrieved from sciences of computers in print­ outs form without an affidavit of the scientist who had retrieved the documents, despite a raised objection on their authenticity. The reasoning of the court was that authenticity of the electronic evidence depends on the type of evidence and availability of witness with knowledge to testify on the subject. In the instant case, there is affidavit of Mr. Swalehe Abdurabi, Senior Compliance Officer, working with the first plaintiff, explaining on how the documents were generated and retrieved from computers. It 3 obvious and plain that the complaints of Mr. Mahende have no any merit whatsoever. I am aware during rejoining of Mr. Kitiya's submission, Mr. Mahende had produced another point of complaint on the discrepancies of names to fault the affidavit. However, the issue has already been handled by this court in the cited decision of Mohamed Enterprises (Tanzania) Limited v. Tanzania Railways Corporation & Another (supra) when resolving an issue whether an affidavit of a scientist who had retrieved documents from computers is important to be attached in the plaint. This court had replied in negative. 5 This court, at page 9 of the Ruling, thought that: the court need to satisfy itself from either the evidence of the witness or on its own discretion that the computer system or other similar device was operating properly or if not, did not affect the integrity of an electronic record and there are no other reasonable grounds on which to doubt the authenticity of the electronic record system. In the instant case, the protested documents have the names of the parties and registration number of the defendant, which was not protested by both parties. In any case, this court is empowered under section 145 (2) of the Evidence Act to admit any fact if it thinks that the fact, if proved, would be relevant to the case. In the instant case, the dispute which had brought the parties into trial is based on whether the defendant is indebted to such amount the plaintiffs claim and whether or not the defendant had contributing members worth to the amount alleged. I 4 think these documents, if admitted will be relevant resolving the raised issues. They cannot be easily ignored by this court for interest of justice of both parties. Any protest founded on trivial matters of technicalities cannot be supported by this court in order to cherish section 3A (1) and 3B (1) of the Civil Procedure Code [Cap. 33 R.E. 2019]. This case is still in the course and PW1 is available at the display of witness box of this court. Mr. Mahende may utilize the rights available in cross-examination stage, and it is well known that the sky is the limit at the indicated stage of proceedings. Having said so, I find the protest registered by Mr. Mahende has no any merit and hereby overruled. The documents are authentic and hereby admitted as exhibit P.2 collectively. Mr. Kitiya may wish to in the presence of Mr. Kitiya Turoke, Ms. Neema Mwaipyana and Ms. Nancy Wanda, learned State Attorneys and in the presence of Mr. Michael Mahende and Samson Samo, learned counsels for the defendant. Judge 01.10.2024. 5