republic vs george menson sanga 2 others 2023 tzhc 22546 6 november 2023

IN THE HIGH COURT OF TANZANIA (IRINGA DISTRICT REGISTRY) SITTING AT NJOMBE CRIMINAL SESSIONS CASE NO. 118 OF 2021 REPUBLIC VERSUS l.GEORGE MENSON @SANGA............................. Ist ACCUSED 2.OPTATUS ELIAS............. ............. 2nd ACCUSED 3.GOODLUCKY OYGEN @ MFUSE........................ ...3RD ACCUSED RULING 6? November, 2023 MRISHA, J When PW2 who is a medical practitioner prayed to tender a Post Mortem Examination Report Form (the PF3) with a view of requesting the court to admit the same as an exhibit, the counsel for the third accused person herein, Mr. Frank Ngafumika, learned Advocate, raised an i objection that the said document should not be admitted as prayed by the said prosecution witness. His objection is predicated into two limbs which are first; that the said form was not prepared in accordance to the provisions of section 11(3) of the Inquest Act, Cap 24 R.E. 2019 (the Inquest Act) which provides that: u(3) The medical practitioner shall make a report to be in the Form C prescribed in the Schedule, stating the cause of death and shall be signed by him, and, on being read at the inquest shall be prima facie evidence of the facts stated in it, but the coroner may call the medical practitioner if he considers it necessary." His main concern was that the above provision of the law is couched in mandatory terms due to the use of the word "5/?a//z/and he went on submitting that the Post Mortem Examination Report Form (the PEMR Form) which is the subject of this ruling, is not in compliance with the above provision of the law. 2 In regard to the second limb of his objection, the counsel for the third accused person, submitted that there is variance of names of the deceased person and the alleged relatives who identified the deceased body in that form since the names mentioned by PW2 in his testimony are not the same to those written in that form, save for the name of Sylvan us Msigwa. He added that the document in dispute does not contain the significant findings of doctor who conducted the post mortem examination of the deceased body. In reply, Mr. Tito Mwakalinga, learned State Attorney who stood for the prosecution Republic, submitted that although the first limb of the objection raised by his learned friend is based on law, the same cannot make the intended document in dispute not to be admitted by this court. His reason was that the gist of section 11(3) is to show the cause of the deceased death and not otherwise. Turning to the second limb of objection, the learned State Attorney submitted that the same is not a legal objection as it touches matter 3 which requires evidential proof; hence, the defence counsel can challenge the prosecution evidence in relation to that document during cross examination. In rejoinder, Mr. Ngafumika briefly submitted that since the provision he has cited is coached in mandatory terms and the counsel for the prosecution Republic has admitted that some parts were omitted by PW2 when filling the said form, he does not expect his objection to be overruled. On my part, I have heard the submissions for and against the prayer of the prosecution Republic that the said Postmortem examination report form be admitted as an exhibit. The issue here is whether the objection raised by the learned defence counsel has merits. Admittedly, it is the law that where a provision of the law uses the word "Shall" then the compliance to that particular provision of the law is mandatory. This is provided under section 53(2) of the Interpretation of Laws Act, Cap 1 R.E. 2019. 4 I have carefully examined the document in dispute. It is obvious that the same was prepared in form C as required under section 11(3) of the Inquest Act, no matter how it was drafted. I have also observed that paragraph (D) of that document reveals the cause of death of the deceased person which is the gist of section 11(3) of that Act, as correctly submitted by the prosecution counsel. The said document reveals that the cause of the deceased death was head spinal cord injury with compliance of bleeding. In the case of Republic vs Shigela Kachelekele ©Njimeli, Criminal Session No. 28 of 2021(unreported), my learned brother Hon. Mwenempazi, J. had the following to say when confronted with a similar situation as in the case at hand: - "The law as seen emphasized the cause of death and the authority certifying by signature. These facts are present in the form. However, the way it is it does not invalidate the form as the cause of death is there and the Medical practitioner has signed the same" 5 Given the circumstance of the present case, I am persuaded to follow the above decision in determining this matter due to the fact that first; the document in dispute clearly indicates that it was prepared in Form C, and the second reasons which I find to be very important and in compliance with the law cited, is that the said form describes the cause of death of the deceased person and bears the signature of the medical practitioner who conducted the post mortem examination of the deceased body. As for the second limb of objection, I agree with the counsel for the prosecution Republic that since the same is not based on law, but on facts, then the defence counsel can have a better chance to challenge it during cross examination. Before I pen off, I wish to say that medical reports are receivable in evidence under section 291 of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA) which empowers the High Court to admit them during trial where the same had been duly served to the accused person or his advocate. 6 The document in dispute being a PF3, is among the medical reports mentioned under section 291 of the CPA. It is signed by a medical practitioner and there is evidence to show that the same was served to the counsel for the accused person. Hence, basing on such factors, I find it to be relevant to the case at hand. In the upshot, and owing to the above reasons, I am constrained to find that the objection raised by the counsel for the third accused is unmerited and it is therefore overruled. In consequence thereof, the Post Mortem Examination Report Form sought to be tendered in evidence by PW2, is admitted. It is so ordered. Judge 06.11.2023 DATED at NJOMBE this 6th day of November, 2023. Judge 06.11.2023 7