THE PLACE OF ELECTRONIC EVIDENCE IN LEGAL PROCEEDINGS IN TANZANIA
The place of electronic evidence in legal proceedings in Tanzania can be viewed in three major phases that is pre-season Electronic Transaction Act, after the amendment to Evidence Act and Post-Electronic Transaction Act. We are going to deal with each phase in details hereunder as each phase’s shows a significant variation as to the place of electronic evidence in legal proceedings.
PRE-ELECTRONIC TRANSACTION ACT
The strict adherence to the common law rules on the requirement of the best evidence rule as the major factor for the admissibility of evidence before the court was tested in the landmark case of Trust Bank Tanzania Ltd. v. Le-marsh Enterprises Ltd., Joseph MbuiMagari, Lawrence Macharia[1], to beneficially erode the best evidence rule admitting computer print-out and other related e-evidence under The Evidence Act of Tanzania.
The court considered the decision of the Court of Appeal in Tanzania Cotton Marketing Board v Cogecot Cotton Company SA[2], had earlier allowed the electronic communication mode of sending arbitration awards to the High Court contrary to Rule 4 of Arbitration Ordinance.
Briefly in the above case of Trust Bank Tanzania Ltd. v. Le-marsh Enterprises Ltd., Joseph MbuiMagari, and Lawrence Macharia (supra), the High Court of Tanzania considered the admissibility of computer evidence. The issue before the court in this case was whether or not a computer print-out is a bankers’ book under the TEA. The court answered this issue in the affirmative.
The facts of this case were as follows. The plaintiff company advanced a loan to the defendants. Upon default to repay the loan and interest, the plaintiff instituted a commercial case against the defendants to recover the principal sum and interest. In the course of the proceedings, the plaintiff wished to tender a print-out of a bank statement. Counsel for the defendants vigorously objected, because it was a photocopy, and not an original.
In overruling the objection and admitting the print-out the learned judge, Nsekela J, (as he then was) had the following to say: ‘It is in this spirit that I am prepared to extend the definition of bankers’ books to include evidence emanating from computers subject of course to the same safeguards applicable to other bankers books under sections 78 and 79 of the Evidence Act’ (Emphasis supplied).
AFTER THE 2007 AMENDMENT TO TEA
In the next case of Lazarus MirishoMafie and M/S Shidolya Tours & safaris v. Odilo Gasper Kilenga alias Moiso Gasper[3], the plaintiff sought to tender e-mails in evidence to prove a claim for defamation. The court considered whether an e-mail, being electronic evidence, is admissible in civil proceedings. This followed a preliminary objection raised by the defendant in the context of the amendment of the TEA by the Written Laws (Miscellaneous Amendments) Act, 2007 which introduced sections 40A and 78A. These provisions deal with the admissibility of electronic evidence in criminal proceedings as well as in banking business respectively.
Relying largely on the US case of Lorraine v Markel[4], Makaramba J held as follows:-
(a) For purposes of admissibility in civil proceedings, evidence generated by computers including e-mails constitutes a document in terms of section 3 of the TEA, subject to the general evidentiary rules on documentary evidence found in Part III of TEA.
(b) Much as issues of admissibility of electronically produced document in evidence may arise, the standards to be set by courts as to authentication go more to the weight to be attached by courts to such evidence in the event it is admitted.
(c) If the admissibility of the document is being disputed, evidence as to its authenticity will be required. In criminal proceedings, where the burden of proof is much higher than in civil proceedings, it will always be necessary for the party seeking admissibility of a particular document to be able to produce some founding testimony as to the source and authenticity of the document, especially if it is an image, otherwise the courts may refuse to admit the evidence.
(d) In criminal proceedings, a prosecutor or party to civil litigation will always be prepared to offer further evidence about the source of electronic evidence and the processing and storage it has undergone since it was first recorded.
(e) A party in civil proceedings must meet the following standards rules (hurdles) before an electronically generated document is admitted in evidence.
i) Is the e-mail relevant as determined under the Evidence Act, (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be? (ii) If relevant under the Evidence Act, is it authentic in the sense that, can the proponent show that the e-mail is what it purports to be? (iii) If the e-mail is offered for its substantive truth, is it hearsay as defined under the rules in the Evidence Act, and if so, is it covered by an applicable exceptions(sic) to the hearsay rules under the Evidence Act? (iv) Is the e-mail that is being offered as evidence an original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the e-mail?; and (v) Is the probative value of the email substantially outweighed by the danger of unfair prejudice or other identified harm?.
Also important to note, the court made two remarks that in civil proceedings where fraud is alleged and if a signature is at issue, it is obviously better to produce the original document rather than an electronic image or even a photocopy of it. Similarly, the court remarked that in civil proceedings where issues relating to authenticity in relation to computer generated records are likely to arise, the process of discovery in which parties exchange various documents in their possession, power and control may resolve problems[5].
In a subsequent case of Exim Bank (T) Ltd v. Kilimanjaro Coffee Company Limited[6],which is similar to Le-Marsh Case, the court determined whether computer print-out statements extracted from an account operated by the plaintiff bank were admissible in court. The defendant objected to the admissibility of computer print-out statements on two grounds. First, that pursuant to section 78 of the TEA, the plaintiff had not proved that the print-out statements in the entries of the alleged bank accounts were made (i) in the usual and ordinary books of accounts of the plaintiff bank, or (ii) in the usual and ordinary course of business of the bank, and that (iii) the statements were in the custody and control of the plaintiff bank. Second, that plaintiff had not proved that the printout statements or documents were examined with the original entries and certified to be correct pursuant to section 79 of the TEA.
The court adopted the guidelines from India where the TEA finds its origin. The court held that in fulfilling the requirements of sections 78 and 79 of the TEA, the electronically generated information in the form of print-outs have to be accompanied by three certificates:-
(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. (b) A certificate by a person in charge of a computer system containing a brief description of the computer system and particulars of: (i) The safeguards adopted by the system to ensure that data is entered or that any other operation is performed by an authorized person. (i) All safeguards adopted to prevent and detect an authorised change of data. (iii) The safeguards available to retrieve data that is lost due to system other reasons. (iv) The manner in which data is transferred from the system to removable media like floppies, disks, copies or other electronic magnetic data storage devices. (v) The mode of verification in order to ensure that data has been accurate transferred to such removable media. (vi) The mode of identification of such data storage devices. (vii) The safeguards to prevent and detect any tempering with the system and, (viii) Any other facts which will vouch for the integrity and accurate of the system.
(c) A further certificate from the person in charge of the computer system to the effect that to the best of his personal knowledge and belief, such computer system, operated properly at the material time of 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 applying the above guidelines, the court rejected the computer print-outs, as the plaintiff failed to provide the proof or certificates required in terms of the provisions of sections 78 and 79 of the TEA.
POST TRANSACTION ACT
Post-Electronic Transactions Act, The first case to be decided by the High Court of Tanzania on the admissibility of electronic evidence following the enactment of ETA is Emmanuel Godfrey Masonga v. Edward Franz Mwalongo[7]. This was an election case in which the respondents raised a preliminary objection against the production of a Video Compact Disc (VCD), sought to prove utterances of discriminatory words against the petitioner resulting in his loss of the election.
The objection was based on sections 18 (2) (a)-(c) and 18(3) of the ETA. The respondents raised questions regarding the reliability and authenticity of the electronic data that was produced. In the first place, the original record was captured by a mobile telephone which was lost after the video clip was sent to the petitioner. Subsequently, the petitioner returned the video clip to the witness who made a DVD from a computer. How the VCD was generated, stored and communicated was cast into doubt, as no evidence was led to show that the computer from which the VCD was made could not be accessed by any other person.
Other grounds of objection included that there was no proof of identification of the brand of the cell phone that was used to capture the video; no evidence that the cell phone was functioning properly; the VCD was not made by the first respondent who is an adverse party to the person seeking to produce the evidence in court; the witness was acting under the control of the petitioner contrary to section 18(3) (c); there was no evidence of loss of the cell phone; no evidence to comply with section 67(c) of the TEA, which requires that where original evidence is not available, secondary evidence may be provided; and also the continuity of custody of the electronic data sought to be tendered left doubt that the VCD might have been tempered with.
In determining the objections, the court raised three questions, namely: whether the VCD was admissible in evidence; if so, how was admissible, and whether the VCD in this case was admissible. The court held that the electronic evidence, and in this case the VCD, was admissible in both criminal and civil proceedings by virtue of the Electronic Transactions Act as amended by section 64A to the Evidence Act.
In subsequent case of Salum Said Salum v DPP[8], in which the admissibility of a VCD was in question. In this case, High Court of Zanzibar admitted a VCD into evidence based on three guidelines: the accuracy of the VCD, proper identification of the voices and picture, and its relevance to the issue in litigation. The court rightly observed that the hallmark of the conditions for admissibility of electronic evidence under section 18(1) authenticity.
However it confusingly went on to hold that admissibility of electronic evidence is subject to the conditions set out in section 18 (2), Most of the criteria in this subsection are about reliability. The court held that the electronic data sought to be tendered (VCD) was inadmissible in evidence due to doubts of the reliability how the evidence was generated and stored. Moreover, no evidence was led to prove authenticity of the VCD as well as the chain of custody.
In the subsequent election case of William Joseph Mungai v. Cosato David Chumi[9], the court was called on to determine a preliminary objection closely similar to Emmanuel Godfrey Masonga. In this case, PW14 sought to tender on behalf of the petitioner an audio CD to prove allegations of violence in the election by the first respondent. The respondents raised two grounds, first that the PW14 was not a competent witness to tender the audio CD, as he was not its author and second, that there were possibilities of tampering with the audio CD.
In overruling the preliminary objection, the court held that his affidavit, together with an extended examination in chief PW 14’s evidence, presented prima facie evidence that satisfied the conditions set out in section 18 (2) of the ETA. In this case, the court also made two important remarks. First, admissibility of electronic evidence is one thing and assessing its weight is another thing. In this case, the court admitted the evidence pending its subsequent discrediting on merit. The second important remark made by the court is that sustaining an objection cannot be based on the mere assumptions that it is easy to tamper with electronic evidence.
CONCLUSION & RECOMMENDATIONS
The development of digital technology in the last century has had a profound effect on the traditional concepts of law and legal rules in the law of evidence. The body of rules governing the admissibility of documentary evidence has been severely strained. The principle problem lies in the definition of electronic document that, under the TEA, is not adequately defined.
The other concepts, which have brought difficulties in the interpretation of evidence statutes, are ‘original’ and ‘copy’ of an electronic document. The issue is whether it is possible to distinguish between an original and a copy as between the electronic document and the computer print-out. These two questions have rarely been precisely answered. In some common law jurisdictions a computer print-out is considered as original, while in others a copy. In each case the status of electronic document is left undetermined.
In order to amend the TEA swiftly to deal with the electronic environment, it is suggested that the concept of a document should be redefined to accommodate electronic document, Similarly, the notion of original and copy should also be reviewed
You may also read part one of this Article
REFERENCE
BOOKS
- Mkulilo, A. (2016). The Admissibility of Electronic Evidence in Tanzania: New Rules & Case Laws. Creative Commons Publishers: University of Bremen, Germany
STATUTE
- The Electronic Transaction Act, No. 13 of 2015.
- The Evidence Act [Cap 6 R.E 2002]
- Written Laws (Miscellaneous Amendments) Act 2007
Citations
[1]High Court of Tanzania (Commercial Division) at Dar es Salaam Commercial case no.4 of 2000 (Unreported)
[2][1997] TLR 165 (CA)
[3]Commercial Case No. 10 of 2008, HCT (Commercial Division), Arusha (Unreported).
[4]F.R.D. 534 (D. Md. 2007), 73 Fed. R. Evid. Serv. 446
[5]Mkulilo, A. (2016). The Admissibility of Electronic Evidence in Tanzania: New Rules & Case Laws. Creative Commons Publishers: University of Bremen, Germany
[6]Commercial Case No.29 of 2011, HCT (Commercial Division), Dar es Salaam (Unreported)
[7]Miscellaneous Civil Cause No.6 of 2015, HCT (Iringa District Registry), Njombe (Unreported).
[8]Criminal Appeal No.3 of 2013, HCZ, Vuga (Unreported).
