19981016 TZHC Mbeya

IN IUE :11GM COURT OF TINZANIA AT MBEIA (DC) CRB11NAL APPEAL NO. 30 OF 1998 (Original Crininal Case No. 805 of 199?. sf RESIDENT MAGISTRTE S COURT MEBIA DISTRICT AT MBEA Before S.M. Rumanyika - Residemt Magistrate) HEADMASTER, IVUMWE SECONDARY SCHOOL APPELLANT Versus PRINCIPAL LABOUR OFFICER •PESPOND:SNT JU]IENT ?10TJ1 T The Court of Resident Magialrato Mbeya convicted the appellant of the offence of Failure to repatate an employee, cintrary to secti.ns 103() and () kx d 154 of the pl,ent Ordanc, Cap, 366 Th court pas.d a st.nce of fine f hs,5,0UQ/= or two months impris.nment in default. The enurt, in addition, orderd immediate i0epatrieLtion ef the employee and parment to him, 'ef suheizten* ex?ensec f,%y the peri.d he rrnaiacó. unep&tiated. The convic•tio., and sentence aggrieved the ap.ellant whose laned advs.ate, Mr. Mkumbe, -in consquen6e, preferred this appeal and argueó it before me, in - the resenc&of a, labour officer, Mr. Lemidiyo Mwidünda, who recisted it. M r. MkurnbohaUalso represerted the appellant at the trial. The appellant was at all material times the Headmaster of Ivuniwe Secondary School situate within the :hnicipality of Mbeya. It was a privat sec.ndary school, and Maulisio Ngweta (Pwi) was one of the tachers there PW1 wa employed on 1.7992 (Ext P2) from Malangali Secondary School Iringa. On 26.6.96 his cervices were terminated (Ext 27). He was paid hic tem±nal bonefits.. On the q'uestion cf xepatriation to Malangali he was offered a l.rry belonging to Meta Secondary School in twn, :Et was meant for hini, his family and luggage. That had been the standard means of repatriating teachers 'at the school. But PW1 rejected the offer0 Hrefused to use the lorry. He told the trial court n 24.12..96 that he never went back to the appellant for the lorry. He.took up 0000../ 2 the matter of his repatriation with the labour office instead. He told the trial court that same day (24.12096) that he would be ready for repatriation after he had harvested his crops in hi shamba 0 It would acpear he wanted td he paid shs.250,000/ which was taken to have been excessive 0 Under sections 55(1). an..103(1) of Cap 0 366 the apellant was obliged to provide transport for the repatriation of PWI to his place f engagement, that is, Malangali. This was ecact1y what the apeflant had done 0 Contrary to th new taken.by the lasour office and the triAl ccuit, the 'oor vehicle provided .. apars to have been prope' and suitabEe in the ci umstàces of the case 0 The stance between Mbeya and Ialangali wa afew hours thive along a good tarmac road. The motor vehicle, though a lorry, woui, therefore, have ferried the appellant, his family.ad liggage to 4alanghli at a gow±th the least. nconve- . '. nier, if any0 ;ven len4diyo Midunda told this court that he would hinself haretaken th offer of a lorry for tansporttion given the goo. onibn .. of the'oad. The offer of the lorry wasnot pecilia or partj.car to -the appellant. The lorry was the one in use by tiechool ,heever repa .tviatio2 . of a teacher arose0 And more, twOuld apear.thatPW1 was yej tbe ready for repatriation as late a at the time of the trial. He had his rops to harvest first. I would with respct, agree with 11r. Mkumhe thatPWl himself stood to blame for any delay i his repatriation. He was not, therefore, pntitled to subsistence expenses in termsAof section 53(4)(a) of Cap. 366. 1 am satisfied that the t''al court erred in its finding that the appellant had neglected or faiJed or refused to repatriate P. The conviction of the appellant, therefore, could not he sustained, . . Iwuld, incohcluin, cooment ói the sentense.of the fine of shs.5, 00G/= passed. That sentence was illegal. The appalant was a first offender, and in terns of section 154 of Cap. 366, a sentence of.a fine which could lawfully be imp6sed was on not exceedingshs.2,000/. I would certainly have substituted a lawful serLtence for that which was passed were the conviction of the .ppeilant tenable, . . 00 0 0 • • 0 ./' 3 91T[1Of •D XIi I UUO(19J Jo *eOAp 'equl XJj adcty jo -' • dh 1 .IeCtO4. 0 0 9[ °aw 1LV oixtflf V-- N IHOW °d° , n - - ,! / / L4 O. ppLItJ8J aq o i pTrd P'OJ[ /ocoi °sqs jo euj ei pmiu piw 9J3pxo Gqj pup, ODU 1189 DIT,4 3p91 239 pU hiOTq.OTAUOO cuj tinb '1edd aqa imll-e upx000 I