Member Articles

 

 

Rex Attorneys 

Published: May, 2007 - Tanzania

Submission: January, 2008

 

 

Electronic Evidence and Its Admissability in Tanzanian Courts
by Dr. Eve Hawa Suinare

 


This article concentrates on electronic evidence and the law in Tanzania relating to admissibility of electronic evidence.

The computer revolution has changed permanently the way we do business. Contracts are concluded electronically, lawyers, banks, accountants and all others receive instructions for work electronically, accept instructions electronically and send completed work to their clients electronically and also invoice electronically, the banks retain data electronically, store data electronically and transact electronically. Electronic communication has become the most common means of doing business. Most, if not all of the banks in Tanzania,  have clauses in their loan agreements which state that a statement of account produced by the bank showing the borrower’s indebtedness shall be a prima-facie evidence of the borrower’s indebtedness. All of these banks keep their records electronically. Everything is fine until the parties disagree and a dispute ensues. How to prove one’s case when the best evidence available is electronic? 

We once handled a case in which every aspect of the business was done electronically, including the invoicing. The issue we had to consider was the admissibility of the documents, all produced electronically, and what other supporting documents and oral evidence we would need to prove the client’s case. We found, like others have before us, that the Evidence Act R: E 2002 as amended lagged behind the electronic revolution. We knew then that we could not rely on the electronic documents as the primary documentary evidence.

As at the date hereof (in January 2008), the law is that a document produced by a computer print-out must always be supported by other independent evidence.  Nowhere this is apparent than in the banking sector. We will use the banking sector and the provisions relating to banker’s book to illustrate the point at issue.
 

The current Tanzanian law on the admissibility of documents including the admissibility of banker’s records was copied form the Indian Evidence Act of 1872 obviously before the use computers. Section 79 which deals with banker’s book states:

“79 (1) A copy of an entry in a banker’s books shall not be received in evidence under this Act unless it be first proved that the book was a the time of the 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, and that eth book is in the custody or control of the bank. 

(2) Such proof shall be given by some person who has examined the copy with the original entry, and may be given either orally or by an affidavit sworn before any commissioner for oaths or person authorised to take affidavits”

Fortunately the Tanzanian Commercial Court has developed the law by recognizing electronic evidence. 

In a recent case Commercial Case NO. 4 of 2000 between Trust Bank Tanzania Ltd and Le-Marsh Enterprises Ltd, unreported) Justice Nsekela (then a High Court Judge in the Commercial Division of the High Court- He is now a Justice of the Court of Appeal) in his judgment touching on bankers’ books cited with approval section 5 of the English Civil Evidence Act which is reproduced as follows:-

Admissibility of statements produced by Computers.
(1) In any civil proceedings a statement contained in a document produced by a computer shall, subject to the rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible, if it was shown that the conditions mentioned in subsection (2) below are satisfied in relation to the statement and computer in question.

(2)   (a)that the document containing the statement was produced during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over  that period, whether for profit or not by any body whether corporate or not, or by any individual.

(b) that over period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained  in the statement or of the kind of form which the information so contained is derived.

( c) that throughout the material part of that period the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) that the information contained in the statement reproduced is derived from information supplied to the computer in the ordinary course of those activities (see : Harsbury’s statutes of England , 3rd edition page 910,914). 

The law as developed by the Commercial Court has yet to be affirmed by the highest court namely the Court of Appeal of Tanzania. This is nonetheless a huge step forward.  There is still a lot that has to be done. The best that can happen should be the Parliament to amend the Evidence Act to recognise electronic evidence as primary evidence.

There is no doubt that electronic evidence will have its challenges, one of which is to address the question of how to prove the identity of an otherwise invisible unknown party in an online transaction and related to that who bears responsibility for liability to any damage caused to anyone who reasonably acted on the assumption that the data in the electronic communication was correct. The practice in other countries is to have electronic signature supported by electronic certificates issued by reputable entities known in an appropriate trade. In Britain such entities are the Chamber of Commerce or the Post Office. The certificate proves the identity of the party in the online transaction. It would be a matter to be discussed, which entity should be more suitable to issue electronic certificates in Tanzania if electronic signature and certificates were provided for in the law in Tanzania.

The amendment of the Evidence Act should address the issue of digital signatures and verification and use of digital certificates as well.

 



 

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