IN THE HIGH COURT OF THE WESTERN PROVINCE (EXERCISING CIVIL JURISDICTION) HOLDEN IN COLOMBO
Marine Star(Pvt)Ltd. vs. Amanda Foods Lanka (Pet) Ltd.
BEFORE: K.T. CHITRASIRI, Esq., H.C.J.
CASE NO : H.C. 181/2007(MR)
DECIDED ON: 31.07.2008.
ORDER
The plaintiff company filed this action claiming damages from the defendant relying upon the terms and conditions contained in the agreement that was filed with the plaint marked P4. Upon filing the answer by the defendant, the case was fixed for trial. In the course of the proceedings, learned Counsel for the plaintiff moved to mark two photocopies of short messages, commonly known as 'SMS' (Short Message Services) which were copied from messages received by a mobile telephone. Similarly, more photocopies relevant to the above have been marked as X17 to X53 and X55 to X57 on behalf of the plaintiff when the evidence in chief was filed by way of an affidavit.
Learned Counsel for the defendant objected to all those documents being produced in evidence stating that no provision in law, available for this Court to admit the contents of such documents in evidence. Since it concerns an important issue on rues of evidence, especially at a time when there is a rapid development in technology taking place, Court decided to consider the issue carefully. Then the parties were allowed to file their submissions on the issue. I will now examine all the relevant material in order to decide whether a message received on the screen of a mobile phone could be admitted in evidence in Court proceedings.
The document sought to be produced being a photocopy (not the original) does not fall into the category of 'Primary Evidence'. It belongs to the category of 'Secondary Evidence'. Section 63 of the Evidence Ordinance stipulates that the 'Secondary Evidence; includes copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and copies compared With such copies. Also, the oral accounts of the contents Of the documents given by a person who has himself seen it.
The photocopy sought to be produced is a copy of a short message received on a screen of a mobile phone. Therefore, unless the original message of that copy received on the screen of the mobile phone is admissible in evidence, the said photocopy could not be regarded as evidence. Thus, the primary issue here is to determine whether the message received on the screen of a mobile phone could be considered as a document according to the law.
Originally, the matters were governed purely by the provisions contained in the Evidence Ordinance. Section 60 of the Evidence Ordinance provides that oral evidence must in all cases be direct. Therefore, the oral evidence is restricts to a fact which could have been seen by the person who testifies to that fact. Section 59 of the Ordinance allows documents also to be considered as evidence. The evidence contained in a document is classified into two categories namely Primary Evidence and Secondary Evidence. Original document is regarded as Primary Evidence whilst the copies of original documents are considered as Secondary Evidence.
Since the issue in the instant case poses a question in connection with documentary evidence, it is necessary to ascertain whether the SMS in issue falls within the meaning of a document. The definition to the word "document" is found in Section 3 of the Evidence Ordinance. It reads thus:
"Document", means, any matter expressed or described upon any substance by means of letters, figures, or marks or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
This provision is further elaborated by the following illustration referred to therein.
"Writing is a document. Words printed, lithographed, or photographed, or documents. A map or plan is a document. An inscription on a metal plate or stone is a document. A caricature is a document"
Before I express an opinion on the said provision in law, I will examine the way in which it was looked at by the Apex court in this country. In the case of Abubakhar vs. Queen (54 NLR 566), it was held that contemporaneous recording of speeches could be admitted in evidence under Section 3 of the Evidence Ordinance. Also, in the case of In re SA. Wickramasinghe (55 NLR 511), it was held that telephone conversations too could be admitted in evidence. Therefore it is clearly seen that the Courts in this country had been making efforts to widen the scope of the meaning given to the word "document" relying upon the interpretation referred to in Section 3 of the Evidence Ordinance.
Thus, it is evident that even from very olden days, Courts in this country were very much inclined to admit and rely upon the evidence which have been generated with the assistance of technology, despite the fact that such evidence did not appear on a surface similar to a sheet of paper.
However. in a subsequent decision namely Benwell vs. Republic of Sri Lanka - 1979 (2) SLR 194 (Benwell extradition case) Justice Collin Thome had said;
"Computer evidence is in a category of its own. It is neither original evidence nor derivative evidence and in admitting such a document, a court must be satisfied that the document has not been tampered with. Under the law of Sri Lanka computer evidence is not admissible under any section of the Evidence Ordinance"
However, the issue in this action does not refer to a document generated through a computer as in the case of Benwell vs. Republic of Sri Lanka. Therefore, the question to be decided in this instance could easily be distinguished from the judgment by Justice Collin Thome. In the circumstances, this Court is inclined to rely upon the judicial pronouncements prevailed before this judgment and to deviate from the lino of thinking of Justice Coline Thome.
Therefore, this Court is bound to follow the decisions pronounced in the aforesaid cases namely Abubaker vs. Queen and in to S.A. Wickramasinghe. Thus, it is my opinion that the message, received on the screen of a mobile phone which had been typed by another portion from a different point and was sent with the assistance of technology, could be admitted in evidence. In the circumstances, I decide that the original message received by a mobile phone should be considered as admissible evidence in terms of the provisions in the Evidence Ordinance enacted in the year 1895.
I also have looked at the subsequent legislation, namely the Evidence (Special Provisions) Act No. 14 of 1995 and the Electronic Transactions act No.19 of 2006 which deal with at electronic and computer evidence. Evidence (Special Provisions) Act was enacted to provide for the admissibility of audio visual recordings and of information contained in statements produced by computers, in evidence whilst Electronic Transaction Act covers a wider area recognizing the contracts entered into electronically. In terms of the provisions of this Act, legal recognition of data messages, electronic documents, electronic records and other electronic communications have been ensured.
However, if one needs to make use of thy provisions of the Evidence Special Provisions Act, that person should follow the procedure referred to therein. Accordingly, evidence in respect of contemporaneous recordings and computer print-outs can be admitted in evidence, only if a copy of such evidence is given to the other party 45 days before the date fixed for trial. Moreover, if the other party makes a request to inspect the machine, through which the document sought to be produced in evidence was generated, it should be made available for inspection to such other party. These steps that are to be followed in terms of the Evidence Special Provisions Act are not really pragmatic. As a result, the provisions of the Evidence (Special Provisions) Act had been made use of only on rare occasions and in fact now it is being regarded superfluous.
However, the plaintiff in this case who sought to produce the contents of the SMS has not followed the aforesaid procedure referred to in the Evidence Special Provision Act. Nor has it made a request to make use of its provisions. Moreover, the provisions of the said Act may not cover to include a shot message under its purview. Therefore, this Court cannot allow the contents of short messages sought to be produced by the plaintiff be admitted in evidence under the Evidence Special Provisions Act.
I will now consider whether the short messages that are to be produced in evidence could be allowed to be led in evidence under the provisions of the Electronic Transactions Act No. 19 of 2006.
Section 21(2) of the Ac stipulates that;
"Any Information contained in a data message, or any electronic document electronic record or other communication - (a) touching any fact in issue or relevant fact; and (b) compiled, received or obtained during the course of any business, trade or profession or other regularly conducted activity, shall be admissible in any proceedings."
Under Section 26 of the said Act, the words "data message" "electronic document" "electronic record" and "communication" have been interpreted in the following manner.
"data message" means information generated, sent, received or stored by electronic, magnetic, optical, or other similar means.
"electronic document" includes documents, records, information, communications or transactions in electronic form.
"electronic record" means a written document, or other record created, stored, generated, received, or communicated by electronic means.
"communication" means any statement, declaration, demand, notice or request, including an offer that a person is required to make or chooses to make in connection with an electronic transaction within the meaning of this Act.
The issue in the instant case is to admit the contents of a short message received by a mobile phone. Interpretations referred to above would definitely include a SMS message under Section 21 of the Act. Therefore, it is my opinion that a short message commonly described as SMS falls within the scope of the Electronic Transaction Act and therefore the evidence sought to be produced by the plaintiff could easily be admitted in evidence under Section 21 of the said Act No. 19 of 2006.
The learned Counsel for the defendant has argued that the provisions of the Electronic Transaction Act cannot be invoked in this instance since the alleged SMS messages were not compiled or received in the course of business, trade or profession or other regularly conducted activity. I am not inclined accept this argument since the sole basis of this action depended upon an agreement, which is purely in the nature of a commercial activity. Moreover, the SMS messages in question had been exchanged between the parties whilst acting under the terms and conditions contained in the said business agreement. In the circumstances, it is my considered view that the SMS messages sought to be produced in this instance could be admitted in evidence even in terms of the provisions contained in the Electronic Transactions Act No. 19 of 2006.
Now that I have described the two methods available in law, namely under the Evidence Ordinance and under the Electronic Transaction Act, to admit the SMS messages in evidence, it is pertinent to refer to Section 21(1) of the Electronic Transaction Act as well since it contains an exclusionary clause. In that it is stated;
"Notwithstanding anything to the contrary in the Evidence Ordinance or any other written law, the following of this Section shall be applicable for the purposes of this Act"
Therefore, it is necessary to ascertain whether the provisions of the Evidence Ordinance could be made use of in this instance. The basis on which I have relied upon the provisions of the Evidence Ordinance purely depends on the interpretation given to the word "document". Whereas the decision to act in terms of Section 21 is based upon the object of the Act namely the recognition accorded to the new developments in technology. I do not see any contradiction between the two for me to disregard the previsions of the Evidence Ordinance as far as the instant issue is concerned. Thus, it is my opinion that this Court Is free to make use of either provision.
However, as I have explained herein before, this Court could have admitted the contents of not only short messages but also a document appealing on a computer screen, relying upon the interpretation referred to in the Evidence Ordinance enacted as far back as 1895 even without recourse to the said Electronic Transaction Act. This view had been expressed on the same line in the cases of Abubhakar vs. A.G. and In re S.A.Wickramasinghe relying upon the said interpretation to the word "document" in the Evidence Ordinance. Accordingly, the images appearing on any substance should be allowed as evidence according to the circumstances of each case.
However, the application now before Court is to admit a photocopy of the said message received by a mobile telephone. Therefore it is the duly of the plaintiff to prove the relevant photocopy in terms of section 63 of the evidence ordinance. Subject to the aforesaid condition referred to in Section 63 of the Evidence Ordinance, the documents marked X17 to X53 and X55 to X57 are allowed to be marked and produced in evidence.
Sgd;
K.T. Chitratsiri, High Court Judge,
Commercial High Court,
Colombo.
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