Ally Ally @ Mgoa vs Republic (Criminal Appeal No. 386 of 2022) [2026] TZCA 192 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: KOROSSO. J.A.. MASHAKA. 3.A. And NGWEMBE. J.A.^ CRIMINAL APPEAL NO. 386 OF 2022 ALLY ALLY @ MGOA............................................................ APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) f Philip. 3.) dated 24th day of August; 2022 in Criminal Appeal No. 04 of 2022 JUDGMENT OF THE COURT 17thFebruary & 03r d March, 2026 MASHAKA. J.A.; Before the Resident Magistrate Court of Arusha, the appellant, Ally Ally @ Mgoa was charged and convicted for the offence of unlawful possession of government trophy contrary to section 86 (1) and (2) (b) of the Wildlife Conservation Act, No. 5 of 2009 (the WCA) read together with Paragraph 14 of the 1s t Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act [Cap 200 R.E. 2002] (the EOCCA) as amended by sections 16 (a) and 13 (b) respectively of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016. The prosecution alleged that, on 25th December, 2019 at Terati Management area within Simanjiro District in the Region of Manyara, the

appellant was found in unlawful possession of zebra meat valued at USD 1200.00 which is equivalent to TZS. Two million, seven hundred sixty thousand (TZS 2,760,000/=) only, the property of the Government of the United Republic of Tanzania without a permit from the Director of Wildlife. Briefly, the facts which led to this appeal are as follows: on the material date within the Terati Management area of Simanjiro District in Arusha Region, the appellant was apprehended resulting from a police operation. The arrest was a result of information received by Mbaraka Shida (PW2) a Park Ranger at Terati Simanjiro and Mfaume Shabani (PW3) a Park Warden while on patrol at the Terati Reserved area from an informer that there are poachers in the area. Acting on this tip, the officers proceeded to the Terati Reserved Area. Responding to the information, PW2, PW3 and other colleagues went to the said area and encountered the appellant in possession of a motorcycle, registration number 756 AWN, make SKYGO, which was carrying passengers and a load composed of two sacks suspected to be carrying fresh zebra meat. In the course of the intervention, the motorcycle fell, and its rider fled the scene, leaving behind the appellant with the two sacks. PW2 arrested the appellant, who identified himself as Ally Mgoa and upon interrogation admitted that he was carrying fresh zebra meat. 2

A subsequent search was conducted by PW3 in the three sulphate bags and found meat with skin which they identified it as from zebra based on its distinctive smell, the presence of yellow fat, and the attached skin, which bore characteristic of black and white stripes. In addition to the government trophy, the search revealed that the appellant was in possession of a panga, the motorcycle make SKYGO with a red tank having registration number 754 AWN and an arrow. The appellant was asked to show a permit but he had none. The alleged zebra meat and other items were seized as evidence and a certificate of seizure was filled and signed by the seizure officer, witnesses and the appellant. The certificate of seizure was tendered in evidence by PW2 and admitted as exhibit P3. On 25/12/2019, PW2 handed over the zebra meat and other items to F.7335 CPL Evans (PW1), a stores/exhibit keeper at the Arusha Central Police, through a Hand-Over Certificate which was tendered by PW1 and admitted as exhibit PI. Later, on 27/12/2019, the alleged zebra meat was handed over to Emmanuel Daniel Pius (PW4), a wildlife officer stationed at Anti-Poaching Unit, Northern Zone for expert physical identification and evaluation. PW4 confirmed that it was zebra meat, revealing its unique physical characteristics; fat heat, thick fiber, black and white stripes. It was valued at USD 1,200.00 equivalent to Tanzanian Shillings 2,760,000/=, according

to the government trophy valuation regulations. A trophy valuation certificate was tendered in evidence by PW4 and admitted as exhibit P4. In his evidence, PW4 filled an inventory form guided by section 101 of the Act No. 5 of 2009 for the disposal of the zebra meat which is a perishable item exposed to decay. PW4 took the form to a Resident Magistrate for an order to dispose of the meat and both PW4 and the Resident Magistrate signed the inventory form, which was tendered and admitted in evidence as exhibit P5. This was the prosecution evidence against the appellant at the trial court. In his defence, the appellant disassociated with the commission of the offence. He claimed that he was arrested at his residence, not at the Terati Reserved Area as alleged by the prosecution. He further stated that though a search was conducted, nothing was found in his possession linking him to the zebra meat and he contended that the case against him was motivated by malice. After evaluation of the evidence, the trial court was satisfied that the prosecution proved the charge against the appellant and that he failed to raise doubts to challenge the strong prosecution evidence. It was the finding of the trial court that the appellant failed to discharge the burden placed on him by section 200 (3) of the WCA, which requires a person found in possession of a government trophy to prove lawful

possession. On the issue of the case being fabricated, the trial court noted that he failed to cross-examine the arresting officer PW3, on the alleged malice when he gave his evidence. Subsequently, the appellant was convicted and sentenced to serve twenty years imprisonment. Aggrieved, the appellant preferred his appeal to the High Court based on seven grounds. However, during hearing of the appeal before the first appellate court, the appellant argued only on two grounds namely; one, the jurisdiction of the trial court and two, variance between the charge and the evidence. On the first issue concerning jurisdiction of the trial court, the first appellate court held that for economic offences, the specific procedural requirements of the EOCCA govern, not the general jurisdiction provisions of the WCA. Therefore, the trial court in Arusha had no jurisdiction to hear the case. The proper courts were the District Court of Simanjiro or the Resident Magistrate's Court of Manyara, however it relied on the case of Makoye Masanya and Three Others v. Republic, Criminal Appeal No. 29 of 2014 (unreported) referring section 387 of the CPA that the proceedings should not be vitiated on the reason that the inquiry, trial or other proceedings in the course of which it was arrived at or passed took place in a wrong region, district or local area

unless such error may have occasioned miscarriage of justice to the appellant. Regarding the second issue of variance between the charge and evidence of the prosecution, the first appellate court held that since the appellant had admitted having been arrested in Simanjiro then the error is not fatal as the appellant was not prejudiced to conduct his defence. Ultimately, it dismissed the appeal. At the hearing, the appellant appeared in person unrepresented. Whereas Ms. Marietha Maguta assisted by Mr. Abdon Bundala, both learned State Attorneys, represented the respondent Republic. Though the appellant is before us fronting eleven (11) grounds of appeal and the supplementary four (4) grounds which appeared in his written statement, for reasons to be known in a while, we will only list ground 11 of appeal: - "That the trial court and first appellate court erred in law and fact in not finding that the prosecution case was not proved beyond reasonable doubt". The appellant prayed to abandon ground one of the substantive and supplementary memoranda of appeal. The remaining grounds were encompassed in one complaint that the prosecution failed to prove the charge to the hilt. He prayed to adopt the ground of appeal and written

statement of arguments and implored the Court to consider them, allow the appeal and set him free. In reply, at the onset, Ms. Maguta presented the position of the respondent Republic by supporting the appeal. Arguing in support of ground 11 of appeal, Mr. Bundala conceded that the prosecution failed to prove the charge against the appellant beyond reasonable doubt. He focused on the inventory form which was admitted in evidence for the prosecution as exhibit P5 arguing that it was procured illegally because the appellant was not present before the Magistrate when a request was made for the disposal of the perishable zebra meat alleged to have been found in the possession of the appellant. He bolstered his stance by referring to us the case of Buluka Leken Ole Ndidai & Another v. Republic (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024) at page 9. To support his argument, he referred us to page 29 of the record of appeal where PW4 stated that he went to the Resident Magistrate Court before Hon. Nguvava, RM to procure an order for disposal which was issued in the absence of the appellant before the Resident Magistrate and PW4 proceeded to dispose of the perishable exhibit by burying it. He argued that exhibit P5 was only signed by PW4 and the Resident Magistrate as seen in the said exhibit which has no signature of the appellant and no comments or remarks or objection 7

written by the said Resident Magistrate. Bolstering his contention with the case of Kwabi Nila @ Limbu v. Republic (Criminal Appeal No. 26 of 2021) [2024] TZCA 1028 (4 November 2024), he recapped that the procedure under section 101 (2) of the WCA was not followed. Mr. Bundala further pointed out though the prosecution evidence had tendered the certificate of seizure which was admitted in evidence as exhibit P3, it failed to read it out before the trial court after its admission and it deserves to be expunged from the record of appeal. It was his submission to the Court that due to these major weaknesses in the prosecution case, as they had no physical government trophy to prove the essential ingredient of possession and if the certificate of seizure is to be expunged from the record, the remaining evidence cannot prove the charge beyond reasonable doubt against the appellant. He concluded stating that ground 11 of appeal has merit and implored the Court to allow the appeal. The appellant reiterated his submission in chief and beseeched the Court to consider, allow his appeal and set him free. Having heard the submissions both oral and written statement from the parties, and having closely scrutinized the record, we are called on to

determine whether the prosecution proved the charge against the appellant. The offence of unlawful possession of a government trophy is primarily governed by section 86 (1) of the Wildlife Conservation Act [Cap 283 R.E. 2022] (the Act) read together with the EOCCA. To secure a conviction, the prosecution must prove three core ingredients beyond reasonable doubt; one, that the item in question is a government trophy; two, that the accused was in possession (physical or constructive) of that trophy; and three, that such possession was without a license, permit, or written authority from the Director of Wildlife. Our attention is drawn to whether exhibit P5 (the Inventory form) was procured legally. Section 101 (1) (a) (i) and (2) of the WCA as amended provides: - "(1) The Court shall, on its own motion or upon application made by the prosecution in that behaif- (a) prior to commencement ofproceedings, order that: (1 ) any animal or trophy which is subject to speedy decay; and is intended to be used as evidence, be disposed of by the Director; (2) The order of disposal under this section shall be sufficient proof of the matter in dispute before any court during trial". 9

Nonetheless, this Court has on multiple occasions pronounced its position on the issue of procuring the involvement of a suspect or suspects at the time of ordering a disposal of perishable exhibits, and the effect of failure to procure such participation of the suspect before the Magistrate who is sought to issue a disposal order. In Mohamed Juma @ Mpakama v. Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 February 2019), we observed that the presence of the suspect at the session seeking a disposal order, is a requirement traceable from the Police General Orders (the PGO). That paragraph 25 of PGO No. 229 provides: - "Perishable exhibits which cannot easily be preserved until the case is heard/ shall be brought before the Magistrate, together with the prisoner (if any) so that the Magistrate may note the exhibits and order immediate disposal. Where possible, such exhibits should be photographed before disposal. "[Emphasis made] The Court referred to the PGO No. 229 paragraph 25 which is related to Investigation and Exhibits and held in Mohamed Juma @Mpakama (supra) that: - "Paragraph 25 of PGO envisages any nearest Magistrate, who may issue an order to dispose of 10

perishable exhibit. This paragraph, 25 in addition emphasizes the mandatory right of an accused (if he is in custody or out on police bail) to be present before the Magistrate and be heard". [Emphasis added] Thus, the Court had this to say: - "...White the police investigator, Detective Corporal Simon (PW4), was fully entitled to seek the disposal order from the primary court magistrate, the resulting Inventory Form (exhibit PE3) cannot be proved against the Appellant because he was not given the opportunity to be heard by the primary court magistrate." [Emphasis supplied] The excerpts above demonstrate our stance that the powers to issue disposal orders of a perishable exhibit under section 101 (1) (a) (i) and (2) of the WCA, must be exercised in observance of the requirements to have the presence of the suspect in respect of whom the exhibit relates under paragraph 25 of the PGO No. 229. Where a trophy is perishable, like in the present appeal which was the zebra meat and has been disposed of by an order issued by a Resident Magistrate prior to trial, the prosecution may face significant evidential hurdles. During the process to secure an order for disposal of a perishable trophy from a Magistrate, both the wildlife officer or exhibit officer and i i

the suspect must physically be present before the Magistrate as we clearly elucidated in Nyamhanga Mwise Muhere v. Republic (Criminal Appeal No. 304 of 2020) [2023] TZCA 17813 (9 November 2023): - "Quite clearly, the provision of paragraph 25 of PGO No. 229 requires in mandatory terms the involvement of the accused in the process of disposal of perishable exhibits which cannot be easily preserved until the case is fully heard. Luckily, this situation is not novel." Though the law is silent on how the disposal order of the perishable government trophy is issued, we had set down the procedures to be followed when seeking such order in Buluka Leken Ole Ndidai & Another v. Republic (supra). We held: - "One, the prayer to issue the order to dispose of perishable exhibits may be made by the investigator or the prosecution informally before a magistrate in chambers. Two, if the order is iikeiy to be relied upon in any future court proceedings against any suspect that suspect must be present at the time of making the prayer. Three, the suspect must be asked as to his comments, remarks or objections as regards the perishable exhibits sought to be destroyed. Four, if that suspect does not make any comments, remarks or objections, the

magistrate shall record the fact that, the suspect was Invited to make any comments, remarks or objections, but he opted to make none. Five, If the suspect makes any comments, remarks or objections, they shall be recorded as appropriate either on the reverse side of the Inventory Form or on any separate piece of paper or papers and shall be signed by the magistrate" [Emphasis added]. In the present appeal, revisiting the evidence of PW4, it is apparent that the appellant was not present when PW4 sought for a disposal order of the seized perishable government trophy. Let us go back to the relevant part of PW4's evidence at page 29 of the record of appeal: - "... I filled Inventory form while guided by Act No. 5/2009 s.101 since the meat was exposed to decay. I went to RM's Court before Hon. Nguvava for the order, the Magistrate Issued an order for disposal, he signed in the form. I buried the meat..." Looking at exhibit P5, we observe that the appellant was not present before the Resident Magistrate, and thus conditions three, four and five enumerated as we underscored in Buluka Leken Ole Ndidai & Another (supra) were not complied with by the said Magistrate. We are aware that the inventory form exhibit P5 as seen at page 29 of the record is not 13

the same as reflected on the document itself at page 47 where it reads as exhibit P3. We, however, find it insignificant, it is a typographical error which does not affect the sanctity of the proceedings. In light of the above discussion, it is clear that the appellant was not present at the time PW4 sought for a disposal order of the perishable zebra meat. In those circumstances, the fundamental right to be heard was violated and the resultant inventory form was invalid and ought not be relied upon to ground conviction of the appellant. See, James Yassin Lati v. Republic (Criminal Appeal No. 173 of 2023) [2025] TZCA 1031 (7 October 2025). The failure to involve the appellant in the disposal process and eventually issue a disposal order renders the destruction of the government trophy unlawful and the subsequent evidence and exhibit P5 inadmissible and ought to be expunged from the record of appeal. We accordingly expunge exhibit P5 from the record of appeal. Our conclusion on evidential probity of exhibit P5 could not be relied on to prove that the appellant was found in unlawful possession of the government trophy stated in the charge and the conviction against the appellant is unsustainable and cannot be allowed to stand. Consequently, we find no further need to determine the remaining grounds of appeal because ground 11 suffices to dispose of the appeal. We find ground 11 of appeal is merited. 14

We allow the appeal, quash the conviction, set aside the sentence imposed upon the appellant and order his immediate release from prison, unless held for other lawful cause. DATED at ARUSHA this 03r dday of March, 2026. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 03r d day of March, 2026 vide video link in the presence of the Appellant in person, Mr. James Pallandyo, learned Senior State Attorney for the Respondent/Republic and Mr. Musa Amiry, Court Clerk; is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL