Q&A – 4 April 2011
Electronic evidence in Court
We have a debt in the bank I work for whereby the documents were strangely exchanged by e mail. The borrower was a good friend of the credit manager and an informal overdraft facility was allowed, contrary to procedures. The overdraft is unsecured save for a guarantee by the individual who has now refused to pay the funds. Our legal team says we have no case as the Court will not accept electronic evidence and that it would be hard to prove the debt.
PL, Dar
On the face of it your legal team is correct. However logic defies what your legal team is saying when it is quite clear, as you have pointed out, that there was a facility and the funds were used. From your question it seems to us that you can prove there was an overdraft that was utilized and that the borrower had exchanged certain e mails with your credit manager. Why then should the Court not support your case?
The cardinal rule is that you must prove what you allege and the onus is on the claimant to prove this.
The evidence act here is very old and does not provide for electronic evidence as it was adopted from the common law system from England. The normal and traditional paper based methods which advocate for original evidence under the best evidence rule, requires that only original documents in a written form should be admissible in Court. You have no originals- what should you do?
The High Court Commercial Division in a landmark case has allowed the admittance of electronic evidence. The main issue before the Court was whether electronic evidence from computer printouts is admissible under the provision of the evidence act. The judge held that Courts have to take due cognizance of the technological revolution that has engulfed the world although record keeping in banks is to a large extent ‘old fashioned’. In conclusion the Judge added that the law can ill afford to shut its eyes to what is happening around the world in the banking fraternity.
Whilst e evidence was allowed in the above case, there are tens of dozens of instances where the Court’s have not allowed e evidence.
Whilst this is being looked at a little more leniently by the Courts, the facts of each case will decide the applicability of the admissibility of e evidence.
Your bank has no option but to file a suit and invoke the above in case the defence raise an objection to the evidence you produce. The learning point for you, and other bankers, is twofold: first you need to have checks and balances even for senior managers to ensure that they stick to your lending guidelines (it must be pointed out that some banks in Tanzania still don’t have proper guidelines). And secondly everything that a banker does must be finally penned down and signed. E mails are convenient but can turn out to be costly.
Fooled by cyber criminals
I am a job seeker and while searching for a job came across an advertisement on a website. One of the requirements was to do an English proficiency test offered by an institute overseas. I had two options- either to pay by credit card, which I do not have, or remit the funds to a certain bank account, which I obediently did. Unfortunately todate I have not been contacted on where to do the exam. I went to investigate and the website is also no longer active- e mails to the address that I was communicating with remain unanswered. All my phone calls go into voice mail and no one bothers replying.I went to the police only to be informed that I was one of the many hundreds of people who have reported this to them and that they do not have the means or skill to trace who these fraudsters are. Do you think I have a chance of recovery?
AM, Dar
It is very unlikely that you will be successful in tracing who the fraudsters are. A website, be it Tanzanian or foreign, can be run remotely from any part of the world and it is difficult to find out who is running it and the genuinity of the content.
We sympathise with you and the police who are also caught unaware and ill equipped to fight. It must be pointed out that accordingly to various criminal law columnists, one of the biggest threat to our security are cyber criminals, who are unknown and can move without been seen.
Other common scams on the internet include messages to e mail users to give out their password so that they could store it for backup- typically these messages purportedly come from your service provider. Once you give your password, the fraudster sends out e mails to everyone on your mailing list that you are stranded and require a few hundred dollars. They also provide a bank account for remittance and cash in on whoever remits the funds.
Coming back to your query, yes you have been conned, it is a criminal offence and you’ve done the right thing alerting the police. On the recovery front, you will need to consult some IT specialists who may be able to trace the whereabouts of the website. You also have a chance tracing the owners of the website through the bank account they used. A banker needs to do due diligence before opening an account.
Driving offence and jail
I was involved in a road accident and am now threatened with imprisonment. The offence is that of causing harm by driving dangerously. I always thought that traffic offences are sortable by paying a fine. What should I do?
LP, Moshi
Dangerous driving is one of the most serious offences under the Traffic Act. In order to prove this offence, the following ingredients must be present: that the accused was driving the car and that the driving was dangerous or reckless which resulted in injury or death.
Most traffic offences are ‘sortable’ by payment of fine. However in view of the seriousness of this offence, and in the interest of public policy, it is true that on conviction you may be imprisoned. You may not be able to deny that you were driving the car but whether you were driving dangerously is subjective and depends on the facts of each case. You should get your attorney to guide you further.