Trust Bank Tanzania Ltd vLe-Marsh Enterprises Ltd and Others (Commercial Case No. 4 of 2000) [2000] TZHC 677 (30 August 2000)

144 TANZANIA LAW REPORTS[2002]T.L.R. A- as to time are to be observed unless justice clearly indicates that they should be relaxed. The above extract was quoted with approval by Samatta, J. A. (as he then was) in Stephen Masato Wasira v. Joseph Sinde Warioba and B Attorney General (2). * The question now is, does justice require relaxation of the provisions of section 25 of the Magistrates Courts Act 1984, with regard to c limitation period. In this case perusal of the judgment complained of shows clearly that the learned District Court Magistrate took into consideration extraneous matters when coming to his decision; the delay is of only 8 days which cannot be said to be inordinate taking into account the fact that the applicant is a layman who is not represented by counsel. In my opinion, it is just and equitable to relax the stipulation as to time of limitation in the instant application. The applicant should lodge his petition of appeal within 14 days E of the date he is notified of this ruling. TRUST BANK TANZANIA LTD u LE-MARSH ENTERPRISES LTD AND OTHERS HIGH COURT OF TANZANIA AT DARES SALAAM (Nsekela, J.) COMMERCIAL CASE No. 4 OF 2000 Evidence - Bankers ' books - Meaning of bankers ' books - Whether of bankers ' books includes computer print outs - Sections 76, 77, 78 and 79 of the Evidence Act 1967.

TRUST BANK TANZANIA LTD v. LE-MARSH 145 ENTERPRISES LTD AND OTHERS In the course of the trial a witness for the plaintiff produced a letter from its advocates addressed to the defendants as evidence of the outstanding loan and the interest thereon without any objection from the defendants. When the witness later sought to produce a computer print-out showing how the interest claimed had been computed the advocate representing the defendants objected, saying the same was a photocopy and not an original document. The question arose whether the computer print-out was a bankers ’ book under the Evidence Act 1967. Held: Taking into account developments in technology that have taken place since the Evidence Act 1967 was enacted, the term bankers ’ books includes evidence emanating from computers, subject to the same safeguards applicable to other bankers ’ books under sections 78 and 79 of the Evidence Act 1967. Cases referred to

1. Barker v. Wilson [1980] 2 All ER 80
2. Packer v. Packer [1954] Pl 5 (3 ) Tanzania Cotton Marketing Board v. Corgecot Cotton Company SA [1997] T.L.R. 165 Statutory provisions referred to:

1. Evidence Act 1967, sections 76-79, Part IV
2. Bankers Books Evidence Act 1879, section 9 Mr Rwechungura, for the Plaintiff Mr Msemwa, for the Defendant

• RULING (Delivered 30 August, 2000) Nsekela, J.: The plaintiff ’ s first witness, one Swaraj Kuma Boss, Deputy Managing Director of the plaintiff bank, while being led by Mr Rwechungura in his examination-in-chief stated in part as follows:

146 TANZANIA LAW REPORTS [2002]T.L.R. A ... As at 29 June 99 the loan outstanding was TZS. 45 230 040 and the overdraft outstanding was TZS. 47 030 044-09. I would like to tender in evidence. This was admitted in evidence as Exhibit P6 without objection from B Mr Msemwa, learned advocate for the defendants. Exhibit P6 was a letter from the plaintiff ’ s advocates to the defendants, being notice of recalling the loan extended to them by the plaintiff bank. It is important to reproduce part of this letter. It provides as follows: c You are hereby required to immediately pay either to us for the account of our client or to our client directly, the following: (a) The principal loan amount of TZS. 45 230 040 outstanding as on 29 D June 1999; (b) Interest on the loan amounting to TZS. 47 030 044-09 as on 29 June 1999; (c) ... E (d) - PW 1 then continued on to explain that the interest figure included penalty interest and prayed to tender in evidence the computation F of interest. It was at this point that Mr Msemwa raised an obj ection to that computation of interest being admitted in evidence, basically because it was allegedly a photocopy and not an original one and that the same was not part of the pleadings. Mr Rwechungura on his G part submitted that it was a computer print-out and that it was part of the reply to the written statement of defence. Instead of my delivering a ruling there and then I thought I should have the benefit of researched arguments specifically on the question as to whether or not a computer H print-out is a bankers book under the Evidence Act 1967. Mr Msemwa has briefly submitted that the words “ bankers ’ book ” have not been defined in the Evidence Act but the learned advocate prayed in aid the definition on Sarkar on Evidence, (15 ed), Volume I 2 at page 2370 where bankers books have been defined to include:

TRUST BANK TANZANIA LTD v. LE-MARSH 147 ENTERPRISES LTD AND OTHERS ledgers, day books, cash, books and all other books used in the ordinary A business of a bank. The learned advocate then implored the court to adopt this definition. He was of the settled view that a computer print out is not contemplated in that definition. He emphatically stated that if there was a vacuum B in the law, then it was up to the Legislature to take it up and not the court. Mr Rwechungura had as his starting point the English Bankers ’ Books Evidence Act 1879 which in section 9 defines bankers ’ books to include: c ledgers, day books, cash books, account books and all other books used in the ordinary business of the bank. I share the concern of both the learned advocates that Part IV of the D Evidence Act 1967 which deals with Bankers ’ Books does not define what is in fact a bankers ’ book. Section 76 contains definitions but the definition of bankers ’ books is conspicuously missing. Section 77 of the Evidence Act 1967 reads: „ 77. Subject to this Act a copy of any entry in a banker ’ s book shall in all legal proceedings be received as prima facie evidence of such entry and of the matters, transactions and accounts therein recorded. As I have stated before, section 76 of the Evidence Act does not F define what sort of books are covered. Like Mr Rwechungura, I trace back to section 9 of the Bankers Books Evidence Act 1879. It reads as under: G 9. Expressions in tjjis Act relating to “ bankers ’ books ” include ledgers, day books, cash books, account books, and all other books used in the ordinary business of the bank. This definition was amended in 1979 by replacing it with a new definition of ‘ bankers ’ books ’ which is in the following terms: 9(2 ) Expressions in this Act relating to “ bankers ’ books ” include ledgers, day books, cash books, account books and other records used in the ordinary business of the bank, whether those records are in I

148 TANZANIA LAW REPORTS [2002JT.L.R. A written form or are kept on microfilm, magnetic tape or any other form of mechanical or electronic data retrieval mechanism. Mr Rwechungura has drawn my attention to the case of Barker v. Wilson (1) in which at page 82 I have found a statement we could B usefully adopt. This is what Bridge, LJ said: The Bankers ’ Books Evidence Act 1879 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 ‘ an 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, including in particular, microfilm ” [emphasis supplied] (See also: Williams v. Williams', Tucker and another v. Williams and another). The important point to note is that the law must keep abreast of E technological changes as they affect the way of doing business. It may be true, as Mr Msemwa argues, that the banks in this country still maintain the old fashioned books that were being used in 1879. This reminds me of the famous words used by Lord Denning in the case of Packer v. Packer (2) page 15 wherein he stated at page 22: F What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has never been done q before, we shall not get anywhere. The law will stand still whilst the rest of the world goes on: and that will be bad for both. I certainly do share with his Lordship ’ s sentiments. Tanzania is not an island by itself. The country must move fast to integrate itself H with the global banking community in terms of technological changes and the manner in which banking business is being conducted. The courts have to take due cognizance of the technological revolution that has engulfed the world. Generally speaking as of now, record j keeping in our banks is to a large extent “ old fashioned ” but changes are taking place. The law can ill afford to shut its eyes to what is

TRUST BANK TANZANIA LTD v. LE-MARSH 149 ENTERPRISES LTD AND OTHERS happening around the world in the banking fraternity. It is in this spirit that I am prepared to extend the definition of banker ’ s books to include, evidence emanating from computers subject of course to the same safeguards applicable to other bankers books under section 78 and 79 of the Evidence Act. Under the circumstances I decline the invitation by Mr Msemwa, learned advocate, that evidence produced by computers should not be considered as bankers ’ books. As I have stated above, in as much as I subscribe to the view that the court should not be ignorant of modem business methods and shut its eyes to the mysteries of the computer, it would, however, have been much better if the position were clarified beyond all doubt by legislation rather than by judicial intervention. But in taking this course of action, I am certainly not traversing virgin territory. The highest Court of the land in the case of Tanzania Cotton Marketing Board v. Corgecot Cotton Company SA (3) had occasion to construe the words “ registered post ” appearing in rule 4 of the Arbitration Rules 1957. This is what the court stated: While it is an undisputed fact that under rule 4 of the Arbitration Rules 1957, the award is to be forwarded to the Registrar of the High Court by registered post, the words ‘ registered post ’ should be interpreted widely enough to take into account the current development in communication technology that has taken place since 1957 when the rules were enacted. It is common knowledge that since that time other modes of postage have been introduced. The DHL system which was used in this case is among such modes of communication, [emphasis supplied] I have no doubt in my mind at all that old fashioned bankers ’ books are giving way to modern advanced ways of keeping bank records. In Barkers case (1) the microfilm was added to the list. We can safely do likewise with evidence generated by computers subject to the same safeguards. I therefore, with respect, overrule Mr Msemwa ’ s objection and the trial will proceed with the examination in chief of PW1 from where it ended. It is accordingly ordered.