NA TZHC DODOMA

IN THE·.HIGH COURT OF TANZANIA. AT DODOMA ·(DC) CRIMINAL APPEAL NO.104 OF 2008 (ORIGINAL DODOMA DISTRICT COURT AT DODOMA CRIMINAL CASE NO. 24 OF 2004 - HON.B.A. MPEPO ESQ., RESIDENT MAGISTRATE) D.P.·P . ................................. ~ ..... a ••••••• APPELLANT Versus EXECUTIVE DIRECTOR OF PRIME EDUCATION NETWORK DODOMA ...... RESPONDENT 21/06/2010 & 6/08/2010 lUDGE.J.VIENT HON. MADAM, SHANGALI, J. . The appellant, The Director of Public Prosecution is appealing against the decision of the Dodoma District Court in ·criminal Case No. 24 of 2004. In that Criminal Case and · according to the substituted charge sheet dated 20/10/2005, .- .J tl1e respondent, as Executive Director of Prime Education Network was charged -with the offence of failing to comply with Regulations made under section 89 of National Social ......·.... _,,; ·.. security Fund Act, No. 28 of 1997, contrary to sections 11 . (6), 72 (e) and 78 of the said Act. For ease of reference let me also disclose the particulars thereof. The particulars of the offence avers that 2 • the respondent who carries on business within Dod_oma · municipality, being registered employer N·o. 675431/4002 wi_th. the Fund to whom the provisions of the National Social th .. S_ecu·rity -. : . . .... .. (NSSF) Act _apply·, between 28 Fund ~ , . February, st ~98 and 31 March, . 2001 · did fail to complete or get _co_mpleted and forwarded to the .Director General NSSF, . . FORMS NSSF R3A in respect of his monthly paid employees, as a result of which there is a loss to the F_und amounting to <t TShs.3,097,200/= being ~at_utory contributions for the period of January, 1998 to April, 2001 as particularized in schedule of contributions forms NSSF/COM.04. Having heard the evidence of the three (3) prosecution witn~sses i.e. PWl, PW2 and PW3 togethe·r with the evidence from defence side i.e. DWl the trial District Court _was conyinced beyond doubt that· there was no sufficient and cogent prosecution. evidence to prove the case ~gainst the respondent. Consequently the respondent was found not guilty and acquitted accordingly. That is the essence of this appeal. In his memorandum of appeal, the appellant has filed thre·e -(3) grounds narhely; " (i) That, the court erred in law by failing to address itself on the provisions of Act No. 28 of 1997 3 :under .GN No. 421 of 1998 and GN No. 8 of 1990.· (ii) That, the court erred in law and facts by holding that in -particular case, temporary employees- ,~ were not registable to the fund.,.. (iii) . That, the court erred in law arid ~act by failing to analyse properly the evidence tendered by prosecution side. On 28/04/2010 both parties were allo·wed to argue the appeal by. way of wr.itten submission. Submitting .0n the first ground. of appeal, . . Mr. Katuli, Learned State Attorney who . appeared and represented th~ appellant/Republic strongly argued th_at the trial District Court faired to observe . the· . . . provisions of section 8 ( 1) read together with section 12 (2) (a) of the national Social Security Fund Act together with the - . . . . . . Registration. of Temporary Employees order, 1998, -~N No._ . -- - - 421 of 1998 which · provide clearly that all tempo.ra-~y employees · in the private sector, Government and Parastatal organization shall be Regfstered as insured persons and the provisions of the NSSF, Act 1997 shall apply to them with effect from the date of coming into operation of this order. Mr._..Katul-i .conte~ded th.at the prosecution side< managed to ·""·· prove beyond reasonable doubt that PW2 and PW3 were temporary employees of the respondent. Therefore, he argued, the provisions of the above cited laws should have been applied and a.dhered to in this particular case. 4 • On the second ground of appeal, Mr. Katuli conceded that the context and. complaint therein is similar with. what . . has. been reiterated under ground . one. He. simply-- added that PW2 arid PWJ being temporary employees of the respondent were eligible to be registered to . : . . the. National . . Social Security Fund. Iri his efforts to intensify his appeal, Mr. Katuli referred to the several provisions in the National Provident Fund Act ~964 which was repealed by the National Provident Fund Act 1975 and the National Social Security Fund, Act 1997. Submitting on the third ground of appeal, Mr. _Katuli complained that the trial Magistrate. failed to analyse and consider the evidence of the prosecuti.on side because PW1 testified that duripg the course. of his inspection he discovered that the respondent had not • registered his employees nor remitted the contributions to the Fund. Therefore, he contended, the evidence of PW1, PW2 and PW3 established 'the prosecution case beyond doubt. In reply, Mr.- Julius M. - Jongwe who "'appeared as the Executive Director of Prime Education network submitted that i_n the foremost the whole ·appeal is improperly before the court because it was filed in contravention of section 378 (1) and 379(1)(a) of the Criminal Procedure Act, Cap. 20, R.E. 2002. In elaboration he stated that the law is clear under section 378 (1) Criminal Procedure Act, that where the Director· of Public Prosecutions is dissatisfied with an acquittal,· finding, ·sentence or order -made or passed by a · subordinate court, other than a subordinate court exercising .its extended powers by · virtue of an order made under section 173 of the Act, h,e may appeal to the High ;Court. Mr. Jor)gwe _argued that section -379 (1) (a) of the Criminal ,., Procedure Act further - stipulates that, no appeal under section 378 of the Act shall be entertained unless the Director , of Public prosecutions has given notice of his ir,tention.'. to appeal, to the subordinate court within thirty days of --the acquittal,_ finding, sentence or order ·against which he wishes to appeal. Mr. Jongwe went further and .. submitted that, from the wording of the above- ,-_?tated provisions of the ·1aw, it is the Director bf Public. prosecution· whp _is · required_ to file the Notice of Appeal or officer subordinate to him. and acting on_ his behalf; but in this appeal the notice . of appeal was lodge~ in court by an employee of the National Social Security Fund who is not working in the office of the Director of Public Prosecutions nor appointed by the OPP. "'He concluded that since the notice .of appeal was filed by a person with no authority, then there is no lawful notice of intention to appeal filed in the court. , - :,,~.: -"---" Responding on the three grounds of appeal Mr. Jongwe submitted to the effect that the whole appeal is devoid of merits because the prosecution miserably failed to prove the charge to th_e required standard against the respondent. • . . . He stated that the particulars of the charge are variant with . 4 . the evidence on the record. Having closely and anxiously given consideration to·the · . ~ submissions from both sides and having gone through the record of proceedings of the trial District Court I am convinced beyond shadow of doubt that this appeal is hopeless. Let me give reasons. I will start with the issue of competence of the appeal itself. In this I -have· no hesitation in stating that the respondent is correct _that the notice o_f intention to appeal was filed by a w.rong_ person. It wa_s filed in court by one · Mwakapesa. P.H. "for and on behalf of the Republic·,, on · 6/06/2008. The letter applying for a copy of judgement and .proc·eedings attached to the same notice of intention to appeal was signed by one Mwakapesa P.H., "for Regional Manager NSSF - Dodoma." The respondent argued that the < • • • • ~. person who filed the notice pf appeal to the court is an employee of the NSSF who had no powers to do so on behalf · of the Director of Public Prosecutions. In my perusa I on the trial District Court record of proceedings, I have noted that one Mwakapesa was sometimes appearing as the prosecutor from NSSF but I could not trace his credentials in the record of the 7 proceedings·. It is neither clear to me if "Mwakapesa" who appeared as the prosecutor is the same person who filed the said Notice of Intention to Appeal. To make things worse the a·pp~llant decided to waive his right to file ·a rejoinder - ..:. -:.·'-' where he could assist and enlighten this court on such matters. It follows ~therefore, in view of section 378 (1) and · 379 (1) (a) of the Criminal procedure Act this appeal was filed by_ a wrong person and as a result the court was not correctly moved. My decision is fortified by the decision of the Cou_rt of Appeal in the case of DP_P vs. THOMAS· M(;>LLEL @ ASKOFU, Criminal Appeal No. 30 of 1998,. Arusha Registry, .where the ·notic:e of appeal to the Court of Appea_l was filed by the Regional Criminal Officer o'f Arusha Region. The · appeal was struck out by the High .Court on the grol:l_n~ that it was not filed by th~ OPP. On appeal both section 377, 3_78 and 379 of the Criminal° Procedure Act were discussed and at the end, the Court-of Appeal ruled that;· 11 0ur construction of this provision is that for purposes of appeals under the Act by _-tt,~ . OPP, th_e . lattec, -is interpretecl .• to ,· include a Public Prosecutor· is an officer subordinate to the DPP, and is acting under his general or special instructions. For, it is inconceivable that while the DPP may have appointed ·public Prosecutors 1n ;; different Ministries, departments or sections through out the country,. all such appointees are not necessarily office1:c; subordinate to him, some ar-.e subordinate d' to some other officials, in which case is our view, they would not be competent to give- the requisite notice." As I have pointed above, in our instant matter tt1ere is no evidence to · show that the said "Mwakapesa" was subordinate to the Director of Public Prosecution and his credentials are unknown. This ground is sufficie_nt .to 1 dispose off this appeal but let me say few words 8·R-: :the merits of the main grounds of appeal. I agree with the --Iearned State Attorney that Section 8 . (1) read together with section. 12 (2) (a) of the NSSF Act an·d the Registrar of Temporary Employees Order, 1998, GN No. 421/1998 provide ..· pe;plexity that all temporary employees in the private sector, Government and Parastatal Organisation shall be registered as insured persons and the provision of the NSSF Act, 1997 shall apply to them with . . ' . . effect from the date of coming into operation of the Order. That is the perfect position of the law. However, the main obstacle in this case is not that position of the law, but