Director of Public Prosecutions v Eliatosha Moshi and Another 1983 Tlr 146 (Hc)

DIRECTOR OF PUBLIC PROSECUTIONS v ELIATOSHA MOSHI AND ANOTHER 1983 TLR 146 (HC)

Court High Court of Tanzania - Mwanza

Judge Mushi J

May 3, 1983

CRIMINAL APPEAL 96 OF 1982 C

Flynote

Labour Law - Oral contract of service - Failure to prepare oral contract of service - S.35 of the Employment Ordinance, Cap. 366.

Labour Law - Wages - Failure to keep record of wages - S.17 of the Terms and Regulation D of Wages Ordinance, Cap. 300.

Labour Law - Wages - Failure to pay statutory minimum wages to employees - S.12 of the Terms and Regulation of Wages Ordinance, Cap. 300.

Labour Law - Workmen's Compensation - Failure to insure against workmen's compensation liability - S.25 of the Workmen's Compensation Ordinance, Cap. 263.

-Headnote

The respondents were partners running a fleet of taxis. They had engaged the complainant one Mwinyasumba Mrema as a driver of the taxi on the agreement that his remuneration per day be equal to 20% of every day's collection. The complainant was subsequently fired on 4th August 1980 having worked since 13th February, 1973.

On termination a claim for payment of wages in lieu of leave and other terminal benefits was G preferred through JUWATA, the worker's trade union. The respondents apparently refused to pay the claims. They were subsequently variously charged for failure to prepare an oral contract of service c/s 35 (1) (2) and (3) of Cap. 366: failure to keep a record of wages c/s 17(1) of Cap. 300; failure to pay the statutory minimum wages c/s H 12 of Cap. 300 and failure to insure themselves against workmen's compensation liability c/s 25(1) and (2) of Cap. 263. The trial court acquitted the respondents on grounds that no proof had been provided to show that the complainant was an employee within the meaning of the law to impose liability on the respondents. The D.P.P. I subsequently appealed to the High Court.

Held: the complainant could not be said to have been a workman and was not in a contract of service with the respondents but was on an agreement for hire.

Case Information

Appeal dismissed.

No case referred to.

H.J. Ndolezi for the appellant.

[zJDz]Judgment

Mushi, J.: The appellant in this appeal is the Director of Public Prosecutions, who in short is normally referred to as D.P.P. The respondents are Eliatosha Moshi - 1st respondent and Denis Mrema - 2nd respondent. The respondents were charged with four counts all of which arose from labour laws: On the first count, they were charged with the offence of failing to prepare oral contract of service c/s 35 (1) (2) and (3) of Cap. 366. On the second count, they were charged with the offence of failure to keep record of wages c/s 17 (1) of Cap. 300. On the third count, they were charged with the offence of failure to insure themselves against workmen's compensation liability c/s 25 (1) (2) of Cap. 263. And on the fourth count the respondents were charged with failure to pay statutory minimum wages to employees c/s of Cap. 300.

After a full trial in the District Court, the respondents were acquitted on all four counts. On the first count, the learned trial magistrate found that the charge was duplex as it charged more than one offence in one count. In this view, the respondents were embarrassed. On the second count the trial magistrate found that the prosecution did not establish that the complainant was an employee within the meaning of the law to create the liability on them as charged. On the third count, the learned trial magistrate found that it was not proved that the complainant was a workman as envisaged under section 2 of Cap. 263, and thus the respondents were not under obligations to insure themselves. And on the fourth count, the trial magistrate found that the count was riddled with duplicity which was incurable. The D.P.P., was seriously aggrieved, he says, by the H decision of the trial court and he has appealed to this court, on several grounds in which he alleges that the learned trial magistrate made an error in his findings. Substantively there are two grounds. The first one, the D.P.P. alleges that the trial magistrate was wrong in holding that there was any duplicity - in count one - and I think in count four as I well and that even if there was such a duplicity, it did not occasion miscarriage of Justice. Secondly the trial magistrate erred in holding that the complainant was not an employee in the second count and similarly a workman in the third count.

This appeal has raised very important and complex issues with immense consequences in so far as the labour laws are concerned. But the manner the prosecution was handled at the trial and even the unsubstantiated arguments in the appeal, have to a large extent hampered exhaustive and thorough examination of the law. We are bound by the record and I shall try to make use of what facts there are to decide the appeal.

There is a basic ingredient in all four counts in the absence of which none of the counts can survive. And this is whether the complainant was an employee or a worker of the respondents. If the complainant was not an employee or a worker as was found by the trial magistrate, then the whole prosecution case collapses. This is why I requested the learned State Attorney to argue ground number five first as it is in this ground which is challenging the finding of the trial court that the complainant was not a worker.

Now, what was the evidence before the court? Succinctly the prosecution case is as put by the complainant in his evidence which I quote:

PW.1: Mwinyisumba Mrema,

I know the accused persons for they had employed me as from 13/2/1973 to 4/8/1980. They had employed me to drive their taxi Rg. No. TDZ 404. The accused employed me to drive their taxi and we agreed that they should pay me Shs. 300/= per month. We did not sign any agreement, nevertheless they honoured their contract and they used to pay me shs 300/= per month until July, 1980. I was not signing for receipt of my salary; and as such there were no wage records. The accused persons terminated me in August, 1980 and I complained to JUWATA for the payment of leave and other terminal benefits.

The respondents denied having employed the complainant but agreed to have given him a taxi to drive on condition that he deducts Shs. 20/= for each shs. 100/= he earned for the hire of the taxi. Let me quote what the first respondent Eliatosha said:

I am a resident of Mwanza Town. I am a businessman owning a fleet of taxis. I am a partner I with the 2nd accused. Originally we had 6 taxis. In 1980 we had three taxis. All the taxis were being driven by drivers. We had A made a verbal agreement with the drivers to the effect that each driver's remuneration was a percentage of what each collects per day; that is for every Shs. 100/= the driver was to deduct shs 20/=. Each driver was to stay with the taxi at home. There was no other B agreement...sometime in 1974, PW.1 approached me to request to drive one of our taxi for he had been dismissed... We gave him one taxi and explained him that he was being given the taxi on condition that he was paid Shs. 20/= for every Shs. 100/= collected by him.

The first respondent was supported by the 2nd respondent who categorically denied to have employed the complainant on a monthly wage basis. There was also another defence witness one Kasian Elias. This Kasian told the court that he was one of the drivers driving the respondent's taxis. He said that he was staying with the taxi and gets Shs. 20/- for each Shs. 100/= he collected from the hire of the taxi. This Kasian told the court that the complainant who was driving one of the respondent's taxis was on similar terms.

The learned trial magistrate carefully examined the evidence before him and after thorough scrutiny he believed the defence evidence. Thus he came to the conclusion that the complainant was paid on commission basis and that such payment of commission did not amount to a wage or salary as envisaged by law and consequently, he concluded that the complainant was not a workman within the meaning of section 2 of Cap. 263.

There seems to be unanimity on the correctness of the finding that the complainant's remuneration was on commission basis. The learned State Attorney seems to agree that that could be so. On my part, I am satisfied that the learned trial magistrate was fully justified on the evidence available to believe the defence evidence and inevitably came to the conclusion that the remuneration was on 20% basis for each Shs. 100/= collected.

The learned State Attorney went further and argued that in whatever manner the complainant was paid, on commission or otherwise, such payment could not be made unless there was a relationship between the complainant and the respondent and the learned State Attorney, stated that relationship was none other but a contract of service bringing the case squarely under Section 2 of Cap 263. The section which the learned State Attorney is relying upon reads thus: 

Workman means any person who has, either before or after the commencement of this A Ordinance, entered into or work under a contract of service of apprenticeship with an employer, whether by way of manual labour, or otherwise, whether the contract is express or implied, is oral or in writing, whether the remuneration is calculated by time or by work done, and whether by the day, week, month or for any longer period.

The question is whether the agreement between the complainant and respondents amounted to a contract of service with an employer as stated in the section above. Here C is where I stated above that the prosecution starved us and has in a way prevented us from exhaustively and lucidly dealing with important issues raised in this appeal. However from little that I can gather from the evidence; the answer to the above question is clearly in the negative. The agreement between the complainant and the D respondents did not amount to a contract of service between employer and employee. There was certainly an agreement between the complainant and the respondent. What sort of an agreement was it? Was it an agreement for the complainant to render service on one part and the respondents to pay specific amount on the other part? The E complainant told the court that the respondent employed him at an agreed monthly wage.

The trial magistrate found this allegation to be false but found that he was paid commission of Shs. 20/= per each Shs. 100/= earned. How was the work being done?

There was evidence which was believed by the court to the effect that the complainant F was given the taxi which he kept at his home. The way I understand this is that the respondents gave the taxi to the complainant to go and use it and whatever income he gets by carrying passengers on hire he should deduct Shs. 20/= for each Shs. 100/=. Put G it in a different way one can say that the complainant was hiring the vehicle from the respondents for use at Shs. 80/= per each Shs. 100/= he gets. How the complainant was to do the work was to be decided by himself. If the complainant did not work and thus earned nothing, he could not go to the respondents and say - look, you fellow I have done my work can I have my wage or salary? To the contrary if the complainant H did not remit anything for a day, the respondents could ask - Look you fellow what is happening? Are you not using the taxi? If you do not want money you had better give it back to me and I shall give it to someone else. The complainant was working independently and was, I think, using the vehicle as if it was his own. Under these I circumstances, the complainant could not be said to have been a workman for the respondents and he was not in contract of service with the respondents but he was on an agreement for hire and used the taxi of the respondents and sharing the proceeds on 80/20 per cent basis. This is enough to dispose of the whole appeal. However, if, I am wrong on this count I uphold the findings of the learned trial magistrate on 1st, 2nd and 4th counts for generally similar reasons as those given by him. The appeal is dismissed on all counts.

Appeal dismissed.

1983 TLR p151

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