DIRECTOR OF PUBLIC PROSECUTIONS v ELIATOSHA MOSHA AND ANOTHER 1984 TLR 28 (CA)

DIRECTOR OF PUBLIC PROSECUTIONS v ELIATOSHA MOSHA AND ANOTHER 1984 TLR 28 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Mustafa JJA and Kisanga JJA

November 28, 1984

CRIMINAL APPEAL 24 OF 1983 B

Labour Law - Employment Ordinance - Complainant driving and keeping

respondent's taxi and retaining 20% of earnings - Whether relationship of Employer

and employee existed to attract prosecution for breaches of the Employment

Ordinance. C

-Headnote

This is a second appeal by the Director of Public Prosecutions and it concerns a case

in which the respondents were charged in the District Court at Mwanza for breaches

of certain provisions of the Employment Ordinance, Cap. 366, and the Regulation of

Wages and Terms of Employment D Ordinance, Cap. 300 and the Workmen's

Compensation Ordinance, Cap. 263. Detailed facts appear in the judgment.

Held: To enable the court to decide satisfactorily whether, on the facts, there existed

in law a E relationship of employer and employee it was necessary to adduce

evidence to show the degree of control that the respondents had over the driver and

the motor vehicle, responsibility for maintenance of the taxi and how the earnings

were determined or controlled. F

Case Information

Appeal dismissed.

Case referred to:

1. Market Investigations Ltd. v Minister for Social Security [1969] 2

W.L.R. 1. G

Mtaki for the appellant

Rugarabamu for the respondent H

[zJDz]Judgment

Nyalali, C.J.: This is a second appeal by the Director of Public Prosecutions and it

concerns a case in which the two respondents namely, Eliatosha Mosha and Denis

Mrema were charged in the District Court at Mwanza on four counts, that is: I

1984 TLR p29

NYALALI CJ

A (1) Failure to prepare and maintain a contract of service - contrary to section

35(1) (2) and (3) of the Employment Ordinance - Cap. 336 - in the first count;

(2) Failure to keep a record of wages - contrary to section 17(1) of the

Regulation of Wages and Terms of B Employment Ordinance - Cap. 300 - in the

second count;

(3) Failure to insure themselves in respect of liability to their employees -

contrary to section 25(1) and (2) of the Workmen's Compensation Ordinance - Cap.

263; and

C (4) Failure to pay statutory minimum wages - contrary to section 12 of the

Regulation of Wages and Terms of Employment Ordinance - Cap. 300.

They were acquitted on all counts at the trial. The Director of Public Prosecutions

was aggrieved by that decision and appealed to the High Court. The appeal was

dismissed in its entirety, hence this D appeal to this Court.

It was found by the two courts below that the respondents owned a number of motor

vehicles which were used in taxi business in Mwanza township; that one

Mwinyasumba Mrema (P.W.1) was one of E the drivers of these taxis for a period of

seven years. He used to keep the taxi at his home and he was paid a 20% commission

on the taxi earnings. The remainder of the earnings was taken by the respondents. In

August 1980 P.W.1 ceased to drive any of the respondents' vehicles apparently as a

result of some misunderstandings.

F It is the prosecution case that P.W. 1 was employed by the respondents

throughout the period and was therefore covered by the relevant provisions of the

Employment Ordinance, the Workmen's Compensation Ordinance, and the

Regulation of Wages and Terms of Employment Ordinance, which G were the

subject of the charges at the trial. The respondents denied that there existed a

relationship of employer and employee between them and P.W. 1 and that the latter

operated as an independent contractor under a special business arrangement between

him and the respondents.

H The crucial point, as correctly realised by both the two courts below, is whether

there was a relationship of employer and employee between the respondents and

P.W.1. Unfortunately, as noted by the first appellate judge, the prosecution was

poorly handled at the trial with the result that there was a failure to adduce crucial

evidence which would have enabled the court to decide the main I issue

satisfactorily. Mr. Mtaki, learned State Attorney who appeared on behalf of the

Director of Public Prosecutions, conceded that there

1984 TLR p30

NYALALI CJ

was such mishandling of the prosecution case. For instance, no evidence was adduced

to show the A degree of control that the respondents had over the motor vehicle or

P.W.1; similarly, no evidence was adduced concerning which party was responsible

for the maintenance of the taxi; no attempt was made to lead evidence on how the

earnings were determined or controlled. Such and like B evidence was necessary to

enable the court to decide satisfactorily whether on the facts, there existed in law a

relationship of employer and employee.

Mr. Mtaki, learned State Attorney, and Mr. Rugarabamu learned advocate who

appeared for the respondents, have cited an authority concerning the relationship

which in law amounts to the C relationship of employer and employee. This is the

case of Market Investigations Ltd. v Minister of Social Security [1969] 2 W.L.R.I.

This case stipulates a number of factors which ought to be considered in deciding

whether a D relationship of employer and employee exists in any particular case.

Such factors are suggested as:

1. Control;

2. Ownership of the tools; E

3. Chance of profit; and

4. Risk of loss.

However, we are of the opinion that the present case is so poorly prosecuted that it

lacks a number of important facts which are necessary for a conclusive statement by

this Court of the relevant F general principles. In any case, only one of the factors

stated in the Market Investigations case, that is, the factor of ownership of the tools,

can be said to have been proved in the present case. It is common ground that the

motor vehicle which was driven by P.W. 1 belonged to the respondents. But that

factor alone does not make P.W. 1 an employee of the respondents, since the motor

vehicle G could have been hired out to P.W.1 by the respondents. On the facts

found by the two courts below, it cannot be said that P.W.1 was an employee of the

respondents. The two courts below were correct in acquitting the respondents and in

dismissing the first appeal. H

It follows that this appeal cannot succeed and we dismiss it in its entirety. I

Appeal dismissed

1984 TLR p31

A