HAWA JUMA KILENGA VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI CRIMINAL APPEAL NO. 10487 OF 2024 (Originating from Economic Case No. 07/2023 of Same District Court at Same) HAWA JUMA KILENG’A …………………………………. APPELLANT VERSUS REPUBLIC ………………………………………………. RESPONDENT JUDGMENT 29/07/2024 & 02/8/2024 SIMFUKWE, J. The appellant herein Hawa Juma Kileng’a, was aggrieved by the decision of the District Court of Same (the trial court) which convicted and sentenced her to serve twenty (20) years imprisonment. 1 Before the trial court, the appellant was charged with an offence of unlawful possession of Government trophy contrary to sections 86 (1) (2) (c) (ii) of the Wildlife Conservation Act, Cap 283 R.E 2022 read together with paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act [CAP 200 R.E. 2022]. The prosecution charged the appellant on allegations that on 14th day of March, 2023 at Hedaru area within Same District in Kilimanjaro Region, the appellant was found in unlawful possession of Government trophy to wit: fresh meat of one (1) dik-dik (madoquakirkii) valued at USD 250 which is equivalent to Tshs. 585,125/=, the property of the United Republic of Tanzania. The appellant did not admit the charge and thus she was fully tried. The prosecution built their case upon evidence of a total of eight witnesses and nine exhibits. Whereas the appellant was the only witness on the defence side. Before the trial court, the prosecution alleged that on the fateful date, PW3 and PW8, both police officers, received information that a certain lady was involved in selling government trophies, who was later 2 discovered to be the appellant herein. After receiving such information, PW3 and PW8 headed to the appellant's place at Hedaru, accompanied by PW7, a Hamlet Chairman of Hedaru A and Hadija Elias a ten-cell leader. They met the appellant inside her house and informed her about their suspicion of her possessing government trophies and that they wanted to search her. The appellant agreed, and upon searching, they discovered a pink bucket which was admitted as Exhibit PE4. It was found containing meat alleged to be government trophy, specifically dik-dik. The search was witnessed by PW7. When inquired, the appellant had no permit to possess the government trophy. PW3 filled the certificate of search and seizure, which was admitted in court as Exhibit PE6. The record reveals further that the appellant, together with the exhibits, were taken to the police station. On the same day PW4 handed over the exhibits to PW1, the exhibit keeper, through a handover form and chain of custody form, which were admitted in court as exhibits PE1 and PE2 respectively. The exhibit was then taken to PW2, the Wildlife Officer, who evaluated it and confirmed it to be a government trophy, specifically a dik-dik, weighing 4 kilograms and valued at USD 250, equivalent to Tshs. 585,125. An evaluation form was filled to that effect, which was later 3 admitted before the trial court as exhibit PE5. Thereafter, PW5 took the exhibit to court to seek a disposal order, which was granted in a ruling in Criminal Application No. 7 of 2023 (Exhibit PE8). The disposal of exhibit was witnessed by PW6, the Court Clerk of the District Court of Same. In addition, the appellant through her cautioned statement, which was admitted as Exhibit PE9, admitted that she was found with the said wild meat. In her defence, the appellant admitted that she was found in possession of the said meat. However, she claimed that she did not know that it was a government trophy. At the end of the trial, the trial court was satisfied that the prosecution's evidence, together with the exhibits, proved the offence charged against the appellant beyond reasonable doubt. Thus, the appellant was convicted as charged and sentenced to twenty (20) years imprisonment. The appellant was aggrieved, he filed the instant appeal on the following grounds: 1. That, the trial court erred in law and in fact to convict and sentence the Appellant while the alleged offence against the appellant was not proved beyond reasonable doubts as 4 per the required standard of identifying exhibits and the area or specific place where the accused was found. 2. That, the trial court erred in law and in fact to convict the Appellant without adhering proper (sic) procedures of disposing exhibits alleged to be found with the appellant, nor a right to be heard during hearing of exhibit "PE8" by the appellant. 3. That, the trial court erred in law and in fact to convict and sentence the Appellant without observing the principles regarding caution statement of the appellant tendered before the trial court making exhibit "PE" which the court relied upon, to be null and void. 4. That, the trial court erred in law and in fact to convict and sentence the Appellant without adhering to the principles regarding the chain of custody of exhibit as well tendering the exhibits hence raising many doubts on the verdict against the Appellant. 5 5. That, the trial court erred in law and in fact in convicting and sentencing the Appellant without considering the evidence of the appellant rather proceeded into conviction and sentence relaying (sic) on the caution statement. 6. That, the trial court erred in law and in fact in convicting and sentencing the Appellant by giving heavy sentence comparing to the weight of the offence. 7. That, the trial court erred in law and in fact to convict and sentence the Appellant without considering the Appellant’s right to be represented before the trial court contrary to the law of the legal aid No. 1 of 2017 At the hearing of this appeal, which proceeded viva voce, the appellant was represented by Ms. Hilda Mbwembwe and Mr. Gasto Mtitu, the learned counsels, while the respondent was represented by Mr. Makore Maheri, the learned State Attorney. It was Ms. Hilda who started to prosecute the appeal. On the first ground of appeal, that the prosecution case was not proved beyond reasonable doubt; Ms. Hilda submitted that for a criminal offence to be seen as 6 committed, it must be proved that the accused committed that offence and the effects of committing that offence must be evident. There must be a guilty act (actus reus) and mens rea, which must go together. In the present matter, Ms. Hilda was of the view that these two elements were not considered by the trial court. She explained that the mental element must be proved by the prosecution beyond reasonable doubt, as it was held in the case of Magendo Paul and Another v. Republic [1993] TLR 219, that: “For the case to be taken to have been proved beyond reasonable doubt, its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be admissible.” The same was also held in the case of Woolmington v. DPP (1935) AC 462. She argued that evidence on record leaves reasonable doubts. Explaining this doubt, Ms. Hilda pointed out gaps in the arrest of the accused, the search, the recording of the cautioned statement, and the transfer of the suspect and exhibits from Hedaru Police Post to Central station where investigation was conducted. Moreover, she challenged determination of the miscellaneous application for disposal of exhibits 7 (meat alleged to be a government trophy), evidence and finally the decision which convicted the appellant. The learned counsel said that it seems there were gaps which show that this case was not proved beyond reasonable doubt. The learned advocate elaborated that the appellant was convicted of the offence of unlawful possession of government trophy, which contains two elements: first, being found in possession of the government trophy (wild meat), and second, lack of a permit from the relevant authority. Relating the first element to the available evidence, Ms. Hilda enlightened that evidence of the appellant at page 44 of the proceedings, paragraph one, reveals that the appellant did not dispute the fact that she was found in possession of meat. What she disputed was that the said meat was a government trophy as she obtained it from the seller who was passing by for personal use as relish, and not for sale as suspected. The learned counsel questioned whether the meat which the appellant was found in possession was a government trophy or not. She opined that the same was not properly proved, as PW2, at page 17, 6th paragraph of the proceedings, mentioned features of the meat and identified the animal as dik-dik. However, the mentioned features have no difference from those 8 which could be found in domestic animals like goats or hares. Ms. Hilda went further by deriving an example of features mentioned by PW2, such as the smallest animal, brown skin, a slippery substance when fresh, and front legs shorter than rear legs. She observed that those features resemble a domestic animal, particularly hare. She noted that a hare may have different colours, including brown, and its meat is slippery when fresh. Additionally, the forelimbs of a hare are shorter than the rear limbs. The learned counsel continued to challenge evidence of PW2, who explained that he weighed the meat and found it to be four kilograms. Then, he discovered that the meat was from dik-dik animal. Ms. Hilda argued that it is not specified what type of measurement was used to determine the weight of the animal purported to be a dik-dik. According to Ms. Hilda, the same raises doubts regarding the exhibit. She blamed PW2 for not providing more details to differentiate it from domestic animals. She suggested that PW2 should have gone further by mentioning muscles, bones, and, if possible, conducting a DNA test. By merely mentioning the above noted features the prosecution left doubts and caused the prosecution fail to prove their case beyond reasonable doubt. 9 In that regard, the prosecution should have proved that the found meat was a government trophy. Concerning the second element, it was argued that the appellant could not have a business because she was not a businesswoman and was not found in possession of government trophies. Thus, the appellant should have not been convicted as the offence was not proved beyond reasonable doubt. Supporting the second ground of appeal, Ms. Hilda clarified that according to PGO 229 paragraph 25, perishable goods should be disposed of by an order of the court. The suspect must be involved in the hearing of the application for disposal of exhibits and the disposal itself. She asserted that in the proceedings, it is not shown that the appellant was involved when Misc. Criminal Application No. 3 of 2023 was being heard in respect of disposal of exhibit. It is shown that the appellant was present when the application was filed, as stated by PW1, PW4, PW5, and PW6. However, it has not been shown that the appellant was present during the hearing of miscellaneous criminal application. Ms. Hilda cemented that disposal of government trophy was discussed in details in the case of Mohamed Juma @ Mpakama v. Republic, 10 Criminal Appeal No. 385 of 2017 [2019] TZCA 518, at pages 20-25, and the case of Arbogast Augustino @ Shayo and 2 others vs Republic, Consolidated Criminal Appeals Nos. 24 and 40 of 2022 [2023], in which the decision in the case of Mohamed Juma @ Mpakama (supra) was approved. She argued that the proceedings of the trial court do not show if the appellant was present during the disposal of exhibits. It was contended that the presence of signature of the appellant in the inventory form does not mean the appellant was present during the hearing of the application for disposal of exhibits. Thus, the appellant was denied right to be heard, as it is a legal requirement to comply with the procedure outlined in the PGO (supra). Mr Hilda was of the opinion that the first ground has merit and renders the entire proceedings, as well as the judgment, null and void. She prayed that the appellant be released from custody. Mr. Gasto started with the seventh ground of appeal, which concerns the Legal Aid Act, Cap 21 R.E 2019. It was contended that legal aid is governed by the Legal Aid Act, under section 22 which provides that applications for legal aid may be made by a pauper (indigent person) or any person or institution on behalf of that pauper. Section 3 of the 11 Legal Aid Act defines an indigent person as someone whose means are insufficient to engage a private legal practitioner and includes other categories of persons where the interest of justice so requires. Mr. Gasto was of the view that since the appellant is a layperson in respect of issues of Legal Aid. Also, her surroundings and income indicate that she cannot afford to pay a private legal practitioner. Thus, she should have known about the presence of the Legal Aid Act through which she could be represented by a lawyer or an advocate. He added that, very few people are aware of the opportunity to be represented in court through the Legal Aid Act as the government has not informed its citizens about it. It was the opinion of the learned advocate that, being unrepresented, it is obvious that the appellant was denied the right to be heard and cross examine, which is a basic right in our country. It was noted that there are technical issues in the proceedings that cannot be understood by a layperson. The learned counsel cited Article 13(6)(a) of the Constitution of the United Republic of Tanzania, which prescribes right to be heard, and Article 13(6)(b) of the Constitution, which prescribes the presumption of innocence until proven guilty. He said that failure to accord the appellant an opportunity to be represented is a denial 12 of the right to be heard and convicting her prior to hearing her, contrary to the Constitution and it renders the decision of the trial court a nullity. It was prayed that the decision of the trial court be nullified and the appellant be released. On the sixth ground of appeal, which concerns sentence, Mr. Gasto referred to section 86(1) of the Wildlife Conservation Act (supra), which prohibits possession, buying, or selling any government trophy. He said that, section 86(2)(c)(ii) of the said Act prescribes punishment for a person who has been found guilty. In this case, the appellant was sentenced to serve twenty years' imprisonment, which according to Mr. Gasto is excessive compared to the offence of which the appellant was charged. He noted that the value of the trophy involved did not exceed TZS 600,000/=. The learned advocate averred that, due to the fact that the appellant has a family which depends on her, her five children and parents, it would be convenient if the court could reduce the sentence or provide an alternative of a fine, which would increase revenue for the country. Moreover, a fine would minimize the number of inmates in prisons. Furthermore, the appellant could contribute to the country's development while out of 13 prison. The learned counsel prayed for a lenient sentence or an order to pay a fine. Ms. Hilda took over the 3rd and 5th grounds, she argued the grounds jointly. Referring to the proceedings, the learned counsel elaborated that, at page 40, paragraph 3 of the proceedings, PW8 explained that on 14/03/2023, from 11:30 hrs to 12:30 hrs, he recorded the appellant's statement at Hedaru Police Station. The recording was witnessed by a person identified as a relative of the appellant. The learned counsel argued that in real sense that person is unknown and was never called to testify before the trial court. Furthermore, the learned counsel submitted that PW1, the exhibit keeper, identified exhibit PE3 by its number PF16, date (14/3/2023), and time (11:00 hrs) at page 14 of the proceedings. The witness said that he received the exhibits at Same Police Station. Considering the distance between Hedaru and Same, Ms. Hilda doubted the time when the cautioned statement was recorded, the circumstances of recording the statement, whether the law was complied with and whether the said cautioned statement can be legitimately used. Based on the noted irregularities in respect of the cautioned statement, the learned counsel 14 contended that it was wrong for the trial court to rely on the cautioned statement alone without considering evidence of the appellant, who repudiated that cautioned statement. Meaning that the cautioned statement was nullified. She reasoned that since the cautioned statement goes to the root of the case, it should be expunged from the record and the appellant be set at liberty. On the fourth ground of appeal, which concerns chain of custody, Ms. Hilda contended that at page eleven of the proceedings, exhibits which were to be tendered before the trial court were listed. Exhibit No. 7 in the list mentioned a small plastic bucket. However, Exhibit PE4 was described differently as a bucket used to carry meat. At page 22 of the proceedings, PW3 identified Exhibit PE4 as a ten-litre bucket but later identified it as a twenty-litre bucket. The learned counsel was of the opinion that the same raises doubts whether Exhibit PE4 is related to this case, rendering that evidence devoid of merit. It was submitted further that, during cross-examination, PW3 gave a different testimony regarding the place where he found the appellant. The reasons given for lack of chain of custody raise doubts, hence, cause this appeal to have merit. 15 Ms. Hilda prayed this court to quash the decision of the trial court, set aside the sentence, and release the appellant. Mr. Makore vehemently opposed the grounds of appeal. Regarding the first ground of appeal, which asserts that the offence was not proved beyond reasonable doubt; the learned State Attorney submitted that after the appellant had pleaded not guilty, the prosecution called a total of eight witnesses. Evidence of all witnesses did not leave any doubt; hence, the court convicted and sentenced the appellant accordingly. He argued that the principles set out in the case of Magendo Paul v. R (supra), cited by the appellant’s counsel, were complied with. Countering the arguments that PW2, a wildlife officer, could not differentiate the features of the dik-dik animal; Mr. Makore referred to page 17 of the trial court proceedings. He argued that PW2 was credible since he explained how he identified the said animal through the remains of the skin. Moreover, at page 44 of the proceedings, the appellant stated that she did not know that the animal was a wild animal. The learned State Attorney subscribed to section 8 of the Penal Code, Cap 16 R.E 2022 which provides that ignorance of the law is not a defence. 16 Opposing the second ground of appeal, where the appellant’s counsel faulted the procedures for disposing of exhibits and that the appellant was not accorded right to be heard; the learned State Attorney cited the case of Mohamed Juma @ Mpakama (supra) at page 23 where the Court outlined procedures to be followed during disposal of exhibits. First, the accused must be present. Mr. Makore said that in our case PW5, the investigator of the case, explained that the accused (appellant) was present in court when an order for disposal of exhibit was issued. Also, the court clerk who was present in court testified and tendered Exhibit PE8, a ruling for disposal of exhibit. The learned State Attorney added that if the accused had doubts, she could have examined witnesses who testified, but she did not, as reflected at pages 29 and 30 of the trial court proceedings. He supported his contention with the case of Issa Hassan Uki vs Republic, Criminal Appeal No. 129 of 2017, CAT at Mtwara, in which Hon. Mwambegele, J.A., at page 16, discussed failure of the accused to challenge evidence of the witnesses means she is comfortable with that evidence. Responding to the third and fifth grounds of appeal, which concern the appellant's cautioned statement and the failure to observe established 17 principles; Mr. Makore averred that at page 8 of the trial court's judgment, the Honourable Magistrate relied on the appellant's cautioned statement. However, the learned Magistrate stated that the cautioned statement was corroborated by PW3, PW7, and PW8. Also, the Hon. Magistrate referred the case of Mohamed Haruna Mtupeni V. R, Criminal Appeal No. 259 of 2007, in which the Court of Appeal stated that: “The very best of the witnesses in any criminal trial is an accused person who freely confess his guilt.” He insisted that in this case it was true that the appellant confessed and the recording of the cautioned statement complied with section 50 of the Criminal Procedure Act, Cap 20 R.E 2022. Furthermore, PW7, who recorded the cautioned statement, tendered it without objection from the appellant. Thus, the statement was admitted as exhibit. It was observed that if the appellant had doubts in respect of that exhibit, she could have objected its admission. Disputing the fourth ground of appeal which is in respect of chain of custody, the learned State Attorney stated that the prosecution called all material witnesses who proved that chain of custody was not broken from 18 the arrest of the appellant up to Same police station where the exhibit was kept. The exhibit register, PF16, was also tendered in court and admitted as Exhibit P3. Moreover, the handing over certificate and chain of custody form were admitted in court without objection from the accused, as reflected at pages 14 and 15 of the trial court proceedings. Thus, it is not true that chain of custody was not observed. On the sixth ground of appeal which faults the sentence meted against the appellant as excessive; it was replied that the appellant was charged under section 86 (1) (2) (c) (ii) of the Wildlife Conservation Act, read together with Paragraph 14 of the 1st Schedule, and sections 57(1) and 60(2) of the Economic and Organized Crimes Control Act, under which the offence charged is economic. Thus, the sentence was in respect of an economic offence, with the minimum statutory sentence of twenty years. Therefore, since the trial court was satisfied before ordering that sentence that the offence was proved beyond reasonable doubt, it was correct to sentence the appellant under that section as provided. On the last ground, which concerns right to representation before the court pursuant to the Legal Aid Act, it was submitted that the appellant was bailed out; thus, she could have sought legal aid services. Even her 19 relatives could have advised her to seek legal aid because she was bailed out. Thus, the allegation that it was the duty of the court to ensure that the appellant was represented is a misdirection. In conclusion, Mr. Makore urged this court to dismiss this appeal and uphold the decision of the trial court. In rejoinder, Ms. Hilda reiterated her submission in chief that the offence was not proved. She explained that PW2 could have explained more, if possible, DNA test and smell could have been conducted. On the issue of disposal of exhibits, the learned counsel for the appellant supported the case cited by the learned State Attorney. Responding to the issue of failure to cross-examine witnesses who testified about Exhibit P8, the learned counsel replied that the appellant was a layman who was ignorant of the law and procedure. Thus, she was not conversant with what was going on. Regarding the cautioned statement, the learned advocate replied that the law was not complied with. She insisted that the purported relative of the appellant was not called to testify and the time of recording the statement was contradictory. 20 On the issue of sentence, Ms. Hilda conceded that it was ordered according to the law, though it was excessive and oppressive. She said that there is need to amend the law. Rejoining on the aspect of curtailment of right of representation, Ms. Hilda reiterated their submission in chief. I have gone through the grounds of appeal, the oral submission of both parties and the records of the lower court. Having done so, I will address the grounds of appeal guided by two principles: First, as a cardinal principle the prosecution case must be proved beyond reasonable doubt; and second, this being the first appellate court, this court has mandate to reassess the evidence on record and draw its own inferences of findings. Now, starting with the first ground of appeal, the main grievance is that the prosecution case was not proved beyond reasonable doubt because PW2, the Wildlife Officer, failed to prove whether the meat which the appellant was found in possession was a government trophy or not. She stated that features explained to the court by PW2 do not differ from those of domestic animals. The learned counsel criticized PW2 for failing to specify what type of measurement used to measure the weight of the said meat. Finally, she argued that the appellant was not a 21 businesswoman and that the meat she possessed was not a government trophy. Mr. Makore replied that PW2 was credible since he explained how he identified the animal through the remains of the skin. He added that the appellant's defence, that she did not know that the meat was a government trophy, is not an excuse under section 8 of the Penal Code (supra). In addressing this ground, I carefully reviewed evidence of PW2. With all due respect to Ms. Hilda, PW2 described the alleged meat and confirmed it to be a government trophy, specifically a dik-dik weighing 4 kilograms, valued at USD 250, equivalent to Tshs. 585,125. He tendered exhibit PE5, the Trophy Valuation Certificate to cement his evidence. The said exhibit was admitted in court without objection from the appellant. It is an established principle of law that an exhibit admitted without objection amounts to admission of its content. In the case of Joseph Deus @ Sahani & Another vs Republic (Criminal Appeal 564 of 2019) [2022] TZCA 411 Tanzlii at page 11 it was held that: “It is a settled law that the contents of an exhibit which was admitted without any objection from the appellant, 22 were effectually proved on account of failure to raise an objection at the time of its admission in evidence.” Being guided by the wisdom of the Court of Appeal, it is my firm opinion that the appellant's act of challenging the exhibit which she did not object when it was admitted into evidence, offends the principles of law. The content of the said exhibit, indicates that what the appellant was found in possession was not domestic meat as alleged by Ms. Hilda, but rather a government trophy, specifically a dik-dik. Be as it may, even if it is assumed for the sake of argument that there was no such exhibit, evidence of PW2, the Wildlife Officer, as an expert cannot be challenged by mere words unless there is strong evidence to the contrary. In the case of Mussa Ernest vs Republic (Criminal Appeal 463 of 2019) [2022] TZCA 655 (27 October 2022) at page 17, the Court stated that: “An expert witness is required to provide the court with a statement of his or her opinion on any matter in dispute calling for the expertise by the witness provided that they have the necessary qualification to give such an opinion.” Emphasis added 23 It is the strong observation of this court that the argument by Ms. Hilda could hold water if she had managed to prove that PW2 was not an expert witness in wildlife matters. Before the trial court, PW2 introduced himself as a holder of first degree in Wildlife Management from Mweka Wildlife Institute. His duties included identification and evaluation of government trophies. Since PW2 had qualifications to give such an opinion, his evidence is credible and cannot be disapproved by mere facts. With the above findings, the first ground of appeal lacks merit. Turning to the second ground of appeal, Ms. Hilda claimed that the procedures for disposing of the exhibit were not complied with on allegation that there is no proof that the appellant was present during the process of disposal of exhibit and was not accorded the right to be heard. This argument was disputed by Mr. Makore, who argued that the appellant was present during the process of disposing of the exhibit and she was heard. It is an undisputed fact that the procedures for disposing of exhibits are well outlined by case laws. It is a requirement of the law that while disposing of the exhibit, the accused must be present and heard, not merely signing the inventory form. In the recent case of Buluka Leken 24 Ole Ndidai & Another vs Republic (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024) Tanzlii, the Court of Appeal categorically stated procedures to be followed when disposing of perishable goods. At pages 13-14, the Court observed that: “As seen above, we indicated that PW3 testified that at the time of seeking a disposal order, the suspects were present. In our view, that simple linear statement is insufficient. Because it leaves many more questions unanswered, in view of this Court's authorities we referred to above. Such queries are like; one, if the suspects were present before the magistrate, where is it indicated in the inventory, that the suspects were present? Two, were they asked for any comment, remark or objection as regards the exhibit which was being sought to be disposed of? If yes, where is the record of their comment, remark or observation in that respect? In our view, the void and emptiness left by the above questions lead to only one conclusion, namely, that the appellants were not heard and their comments or 25 objections (if any) were not taken, at the time the disposal order was being procured. In the present matter, I revisited the proceedings of the trial court and learned that this is one of the cases in which the trial court adhered to the procedures for disposing of the exhibit. Credit is given to the trial court. Before disposing of the said exhibit, there was Misc. Criminal Application No. 3 of 2023, which was an application made seeking an order for dispose of dik-dik meat under certificate of urgency. The case file (proceedings) of the said application is part of the record of this appeal. The appellant herein was duly served. She informed the trial court that she had no intention to file her counter affidavit. The hearing of the application was conducted in the presence of the appellant, and actually, the accused (the appellant herein) was heard. This is according to the proceedings of the miscellaneous criminal application and Exhibit PE8, which is the ruling of the trial court of the said application. In light of the above noted findings, I don’t agree with Ms. Hilda’s argument that the procedures for disposing of the alleged meat were not adhered to. On the third and fifth grounds of appeal, Ms. Hilda challenged the recording of the cautioned statement. She centred her argument on the 26 fact that PW8 explained that he recorded the appellant's statement at Hedaru Police Station on 14/03/2023, from 11:30 hrs to 12:30 hrs in the presence of the appellant's relative, who was not called to testify. At the same time, it was asserted that PW1, the exhibit keeper, identified exhibit PE3 by its number PF16, date (14/3/2023) and time (11:00 hrs) at page 14 of the proceedings. The witness said that he received the exhibits at Same Police Station while there is a distance between Hedaru and Same. Ms Hilda questioned the time when the cautioned statement was recorded, the circumstances of recording the statement, whether the law was complied with, and whether the said cautioned statement can be legitimately used. In reply to this contention, Mr. Makore stated that the cautioned statement was considered in corroboration with other evidence. He added that the same was admitted in court without objection. I will start with the last contention of Mr. Makore. With due respect, even if a cautioned statement has been admitted without objection, still the court is duty bound to scrutinize its validity. The Court of Appeal has recently in the case of Majaliwa Ernest vs Republic (Criminal Appeal No. 465 of 2022) [2024] TZCA 313 (7 May 2024) made it clear that it has 27 departed from the previous position. The Court stressed that if there is a contravention of the law, then the court on appeal can address the legality of such a cautioned statement even if it was admitted without objection. Reasons for departing from the previous decision were stated at page 20 that: “Thus, in this case we adopt the position taken in the case of Mohamed Juma @ Mpakama (supra) and other cases in that category. Therefore, in this case our decision is that, although the cautioned statement was not objected to at the trial, having been recorded about three days from when the appellant was restrained in police custody, the confession was offensive of the provisions of section 50 (1) of the CPA…” Therefore, guided by the above position of the law, although the cautioned statement in this case was admitted without objection, this court is obligated to discuss its validity. I have reviewed evidence of PW8 and PW1. With due respect to Ms. Hilda, according to PW8, the statement was recorded within the prescribed time, which is four hours from the time when the appellant 28 was arrested. The appellant was arrested on 14/03/2023 in the morning according to the evidence of PW3 and PW8 at pages 21 and 38 of the typed proceedings. PW8 recorded the statement of the appellant from 11:30 hrs which was still in the morning to 12:30 hrs, within the four hours prescribed by the law. Regarding the allegations that PW1 labelled the exhibit on 14/03/2023 at 11:00 hrs at Same police Station, and considering the distance from Same to Hedaru, this argument has no merit. The cautioned statement was recorded in accordance with the law to wit section 50 of the Criminal Procedure Act. Therefore, the 3rd and 5th grounds of appeal are without merit. The next ground for determination is the fourth ground of appeal, in which Ms. Hilda, for the appellant, argued that while Exhibit No. 7, a small plastic bucket, was listed among the exhibits to be tendered before the trial court, Exhibit PE4 was described differently as a bucket used to carry meat. PW3 identified Exhibit PE4 as a ten-litre bucket but later identified it as a twenty-litre bucket. According to the learned advocate, that raises doubts. She added that during cross-examination, PW3 gave a different testimony regarding the place where he found the appellant. 29 Upon considering Ms. Hilda’s argument, I hesitate to term her concern as chain of custody per se. What she tried to articulate is the discrepancy regarding the bucket that was alleged to carry the government trophy and not chain of custody per se. Chain of custody entails the process of maintaining the handling of evidence (exhibit) from the moment it is seized from the accused person to the moment it is presented in court. Concerning the argument that PW3 identified Exhibit PE4 as a ten-litre bucket but later identified it as a twenty-litre bucket, this contradiction is nowhere to be seen. It was PW1 who tendered the said bucket, which was admitted as Exhibit PE4. PW3 identified the said exhibit and stated that it was a twenty-litre bucket, as seen at page 24 of the trial court proceedings. Therefore, the 4th ground of appeal is also without substance. On the sixth ground of appeal, Mr. Gasto for the appellant contended that the sentence imposed on the appellant was excessive compared to the value of the trophy she was found with. He suggested a fine and argued that the court should consider that the appellant has dependents. Mr. Makore replied that the appellant was charged under section 86(1)(2)(c)(ii) of the Wildlife Conservation Act, read together with 30 Paragraph 14 of the 1st Schedule, and sections 57(1) and 60(2) of the Economic and Organized Crimes Control Act, under which the offence charged is economic. Thus, the sentence was in respect of an economic offence, with the minimum statutory sentence of twenty years imprisonment. Straightaway, I agree with the learned State Attorney that the appellant was charged under the provisions of economic crimes, whereby the offence charged falls under paragraph 14 of the 1st Schedule to the Economic and Organized Crimes Control Act. Essentially, this paragraph prescribes that an accused person commits an offence under this paragraph if he commits an offence under the provisions of sections 17, 19, 24, 26, 28, 47, 53, 103, 105, Part X or Part XI of the Wildlife Conservation Act or section 16 of the National Parks Act. Section 86(1)(2)(c)(ii) of the Wildlife Conservation Act, under which the appellant was charged, falls under part XI of the Act. The prescribed minimum sentence is 20 years imprisonment as provided under section 60(2) of Cap 200 which provides that: “Notwithstanding provision of a different penalty under any other law and subject to subsection (7), a person 31 convicted of corruption or economic offence shall be liable to imprisonment for a term of not less than twenty years but not exceeding thirty years, or to both such imprisonment and any other penal measure provided for under this Act...” Emphasis added Based on the above provision, the only minimum statutory sentence which was available for the appellant was 20 years imprisonment regardless of the mitigating factors she had. Thus, the sixth ground of appeal is also devoid of merit. The last ground for determination is the seventh ground of appeal. Mr. Gasto, for the appellant, asserted that the appellant was denied the right of representation as provided under the Legal Aid Act. Mr. Gasto recommended that since the appellant is a layperson, she should have been informed about the Legal Aid Act, through which she could have been represented by a lawyer or an advocate. On the other hand, Mr. Makore, briefly responded that since the appellant was bailed out, she should have sought legal aid services. This ground of appeal will not detain much of the court's time. Much as I agree with Mr. Gasto the availability of the Legal Aid Act and the 32 importance of legal representation as a constitutional right, with the well- known legal concept that people are supposed to be aware of applicable laws, I am of considered opinion that the accused's inability to know the existence of a particular legislation does not constitute a ground for appeal. As a Latin maxim express it: “Ignorantia juris non excusat.” Meaning, ignorance of the law is not a defence. In the circumstances, I find the 7th ground of appeal baseless. In the upshot, having found all grounds of appeal devoid of merit, I hereby dismiss the appeal in its entirety and uphold the conviction and sentence meted against the appellant. Ordered accordingly. Dated and delivered at Moshi this 2nd day of August, 2024. Right of further Appeal explained. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 02/08/2024 33 34