The Tanzanian law of Evidence Act, No 6 of 1067 (Act) does not have provisions recognizing electronic documents as admissible evidence whether primary or secondary (see sections 64, 65 and 79 of the Act). Yet Tanzanian companies take orders, conclude contracts, send invoices and generally conduct business electronically without additional documentation to support the business transacted electronically. Instead of manually signed hard copies computer documents are normally considered by the parties involved as authentic and binding with or without electronic signatures whether from the international or local business partners. Few are, however, aware that in the event of a dispute they may face problems establishing their claims in court.
The Act, in this respect, is behind economic and technological developments. In the only case where the admissibility of electronic evidence became an issue, the court admitted electronic evidence on grounds of new developments in technology and new modern ways of keeping banking records. The court relied on a UK case and UK law.
So if you were a company doing business in Tanzania or transacting business with Tanzanian companies it would be prudent to have primary documents in respect of any business transactions you do besides the electronic documents. The landmark case that we will discuss below is a High court case. The case was not appealed against. Should a similar case find itself in the Court of Appeal, Tanzania’s highest court, it is possible that the Court of Appeal may reach a different decision. There is no doubt that in time the law will be changed to make electronic documents admissible in evidence. Until then it is prudent to play safe.
Read below, more details about the law, the background and the case:
Sixteen years ago computers were an expensive luxury in Tanzania affordable by only a few institutions and individuals. Even our national commercial bank whose apparent business meant it had more money than other types of businesses was (there was only one bank until in the early 1990s) operating and updating its customer accounts manually till recently. Banking services were strictly not available to customers in the afternoon so that the bank staff could have the time to evaluate and balance the day’s receipts and payments.
Today banks are open the whole day to customers, and bank "Automated Teller Machines" (ATM) are available 24 hours a day for withdrawals of cash by customers, thanks to automation and the use of computers. Nevertheless the current Evidence Act No.6 of 1967 does not recognize as admissible evidence any documentation which is not originally authenticated or signed, or which is not certified under signature as a true copy, or which has not been compared and found identical with the original document or book entry.
Proof of a copy of a banker’s record is by supporting oral testimony or by affidavit sworn before a commissioner for oaths or other person authorized to take affidavits (see section 79 of the Evidence Act).
Generally speaking an electronically produced document, whether it is from a banker’s books or not, is not recognized by the Act as a separate category and it will not be treated as an exception to the rules of admissibility.
Our current law on the admissibility of documents including bankers’ records is derived from the Indian Evidence Act of 1872 enacted of course long before the advent of computers. In Tanzania up to this moment the law is that other independent evidence must always support a document in the form of a computer printout.
The need is now obvious for Tanzania to update the Act in recognition of the present reality that the transmission of data and documents through electronic media has become widely acceptable.
In relation to bankers’ books or records of banking transactions section 79 of our Evidence Act of 1967 which does not give any special status or treatment to electronic records, 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 at 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 the 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 authorized to take affidavits"
So far other than the business community not the executive or the legislation is aware of the urgency of developing the law to march the current commercial needs formally recognized computer produced banking and other documents as admissible in their own right. This is a challenge to the legal community to bring about public awareness and lobby the Government to introduce necessary amendments.
The views of the Judge in the English case of Barker v. Wilson  2 All E.R. 80 at page82 could well apply to the Act. It was stated as follows:
"The Bankers’ Books Evidence Act 1879 [of England] was enacted with the practice of bankers in 1879 in mind. It must be construed in 1980 in relation to the practice of bankers, as we now understand it. So construing the definition of "bankers’ books’ and the phrase on "entry in a banker’s book", it seems to me that clearly both phrases are apt to include any form of permanent record kept by the bank of transactions relating to the bank’s business made by any of the methods which modern technology makes available…"
The English law of Evidence of 1968 provides for admissibility of electronic documents which the court in the Tanzanian case adopted.
Adoption of the English Law on computer print-outs of banks
Recently, the Commercial Court (Nsekela, J. as he then was- he is now a Justice of the Court of Appeal) boldly adopted the provisions of the English Civil Evidence Act of 1968 and the Seychelles Evidence (Bankers Books) Act Cap 75 on computer documents (through a dictum in the judgment in Commercial Case No. 4 of 2000 between Trust Bank Tanzania Ltd and Le-Marsh Enterprises Ltd, unreported). In his judgment Nsekela, J. (as he then was) cited with approval Section 5 of the English Civil Evidence Act, which is reproduced as follows:
" Admissibility of statements produced by Computers
5. 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.
- The said conditions are –
- 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;
- that over that 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 from which the information so contained is derived;
- 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
- that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities (see: Halsbury’s Statutes of England, 3rd edition, page 910, 914)"
The electronic revolution has reached Tanzania and is inexorably growing as part of the globalization phenomenon. An ever-increasing amount of business correspondence is now conducted by e-mails and faxes, including tenders and other contractual deals which are exchanged and transmitted electronically. Since the "reception clause" is no longer available for Tanzania to automatically adopt English law, it is imperative that the Act is suitably amended.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.