There are several things to note about exhibit D2 (ii). The email does not have
the header which would have contained the time and date when it was
transmitted. And at the bottom of the page there is another date of the 17th of
April,
2010
and
the
full
line
reads
as
follows:
http://127.0.0.1:4664/preview?event_id=6&q=dian+rates&s=fojhSh8...4/17/2
010. This code appears at each page of the email in issue. DW1 testified in
cross examination that he had obtained this document through a Google
search engine on the 17th of April 2010. The search revealed two documents
namely exhibit D2 (i) and D2 (ii). Exhibit D2 (i) is revealed by the header to be
from Nakiyingi Rebecca Rebecca.Nakiyingi@damco.com However D2 (ii) does
not have the sender or receivers email addresses, neither does it have a date
of sending. The email in contention is exhibit D2 (ii). Secondly D2 (i) though
clearly dated and with senders address shown does not have the electronic
data signature reproduced below as:
http://127.0.0.1:4664/preview?event_id=6&q=dian+rates&s=fojhSh8...4/17/2
010, displayed at the bottom of the printout. It is therefore doubtful whether
these two exhibits D2 (i) and D2 (ii) were accessed or printed out using the
same process, search engine or computer devise. I agree with the plaintiffs
that the process of authentication of exhibit D2 (ii) does not meet the
requirements of section 7 of the Electronic Transactions Act cap 2011 and the
case law cited. I am not persuaded that authentication by DW1 shows that this
information was available through a process which ensured that it remained
unaltered as it was in the original when it was sent. There is no satisfactory
explanation by DW1 why the Google search engine was able to display the
date it was sent and the address of the sender of the email in exhibit D2 (i) but
this was not displayed in the case of exhibit D2 (ii) which is the email
communicating the exclusion clause. However PW1 seems to have admitted
that he and Jabez received the purported email when he was cross examined.
As far as authentication relating to the receipt of the email is concerned, PW1
admits D2 (i) and says they received the other email exhibit D2 (ii) for the first
time in April 2010. One may argue that the data displaying the sent/received
email is with the plaintiff and adverse to the plaintiff and therefore deemed
authenticated by showing it was sent under section 8 of the Electronic
Transactions Act 2011. However the email does not have sufficient
header/footnote automatically generated references for a conclusion to be
made on this issue. I have taken into consideration submissions of the
defendants Counsel that exhibit D2 (ii) was admitted as an exhibit by consent.
Indeed the email was admitted by consent during the conferencing of the suit
inter parties and therefore objection to admissibility is belated. Submission can
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