19841124 TZCA Mwanza4

IN THE COURT OF A?PEAI.J OF TANZANIA I" AT MWANZA (CORAM: Nyalali, C.J,, Mustafa, J.A. and K4isanga, J,A, ii CRIMINAL APPEAL NO.. 24 OF 1983 B E T W E E N THE DIRECTOR OF PUBLIC PROSECUTIONS , , APPELLANT A N D 1, ELIATOSHA MOSHA 2. DENIS MREMA RESPONDENTS (Appeal from the decision of' the High Court of Tanzania at Mwariza) (Mushi, J. dated the 3rd day of May, 1983 JUDGMENT OF THE COURT NYALALI, C.J.: C This is a second appeal by the Director of Public Prosecutions and it concerns a case in which the two espondents, namely, Eliatosha Nosha and Denis Mrema were charged in the District Court at Mwanza on four counts, that is: Failure to prepare and maintain a contract of service - contrary to sectin 35(1)(2) and (3) of the Employment Ordinance - Cap. 366 - in the first count; Failure to keep a record of wages - contrary to section 17(1) of the Regulatián of Wagesand Terms of Employment Ordinance - Cap. 300 - in the second count; 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 Failure to pay statutory minimum wages - contrary to section 12 of the Regulation of Wages and Terms of Employment 'Ordinance - Cap, 300, I 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 appeal to this Court, -2- It was aund by the two cou.'ts below that the respondents owned a number of rotor vehicles which were used in taxi business in Mwanza township, that one Nwinyasumba Mrema (P0W01) was one of the drivers of these taxis for a peried of seven years0 He used to keep the taxi at hishome and he was paid a 20% commission on the taxi earnings0 The remainder of the earnings was taken by the respondents 0 Iri August 1980 P0W1 ceased to drive any of the respondents' vehicles apparently as a result of some misunderstandings. It is the prosecution case that P0W.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 Ordinace, and the Regulation of Wages and Terms of Employment Ordinance, which were the subject of the charges at the trial 0 The respondents denied that there existed a relatiorship of employer and iiployee between them and P.W0 1 and that the latter operabed as an independent contractor under a special business arrangement between him and the respondents0 The crucial point, as correctly realised by both the two courts below, is wh - ther there was a relationship of employer and employee between the respondents and P0W01 0 Unfortunately, as noted by the first cppellate judge, the prosecution was poorly handled at the trial with the result that there was a failure to adduce crucial evjdence which would hve enabled the court to decide the main issue satisfactorily0 Mr0 Ntaki, learned State Attorney who appeared on behalf of the Director of Public Prosecutions, conceded that there was such mishandling of the prosecution case. For instance, no evidence was adduced to show the 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 0 00 I -3- on how the earnings were determined or controlled. Such and like evidence ns necessary to enable the court to decide satisfactorily whether, on the facts, there existed in law a relationship of employer and employee0 Mr. Ntaki, learned State Attorney, arid Mr. Rugarabamu learned advocate who appeared for the respondents, have cited an authority concerning the relationship which in law amounts to the relationship of emoloyer and employee. This is the case of Market Invastioati'ns Ltd. v. Minister of Social Security (1969) 2 W.L.R. 1. This case stipulates a number of factors which ought to be considered in deciding whether a relationship of employer arid employee exists in any particular case. Such factors are suggested as: Control; Ownership of the tools; 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 general princijle.s. In any case, only •one of the factors stated in theMarket 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 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 dismissincj the first appeal 0 •. . - * —4- It fo.11ws that this appeal cannot succeed and we dismiss it iits tie 0 •: s4i. I DATED a'EMWAI'JZAthi 24th day of November, 1984 F. L. NYALALI CHIEF JUSTICE A. MUSTAFA JUSTICE OF APPEAL R. H. KISANGA - JUSTICE OF APPEAL ii cerUfy a true copy: of the original0 ..4. . . ... - ¼ . / j - . \'• B. MOSHI SENIOR DEPUTY REGISTRAR