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HIGH COURT OF T1d3ANIA AT DODONA .APPELLAE JURISDICTION HIGH COURT CRIMINAL A?FEAL NO. 250 OF 1977 ORIGIfAL CkIhIIMAL CASE NO. 556 OF 1976 N/S KIO"BOI CONSUWIRB C0-OPER.TIVD SOCIJ'1TY LTD..Appellant versus The Republic . ... . ......... ...•.... T?espondent Cha'ge: 1 st Count: Failing to pay to the BOard wi.in the prescribed period contribut ions arount to she. 21 21= liable to be paid to the Board c/s 38 (1) d) of ibe Act' herein mentioned. 2nd count: Failing to comply with Reulations 6 made under section 48 of the Nati onal provident FUnöJ ict No. 36 of 1964 as a result of which there is a loss to the National Iovident Fund Act, No. 36 of 1964. /JUDGM.ENT I CHIPETA, J The appellant, a consumer co-operative society, was convicted of the abo're mentioned off ences and was senenced to pay shs. 1001= on each count. The appellant is now an ea ling . The appellant is a co-operative society registered in the name of Kthomboi Consumers Cooperative Society. The society came into existence in or about the year 1968. In accordance with the National Provident Fund 1.ct, 1964, the Society duly filled form No. N.P.F. 1 by which the society dec±ated to the Regional Compliance officer, Singida, that the society had eight employees in respect of whom the society w:.s liable to pay National Iovident Fund contribution with effect from 1st June, 1968. On receipt of that form by the Providen);borities, the society was duly registered as a con 4çibutor to the fund. In September 1976, a National provident fund iispseor checked the records of the society and discovered that the soci ety had not been contributing to the fund. Hence these charges. In its defence, the society said that it was not liable to pay contributions because the people who were working for the soci3ty were not being paid salaries but more allowances, populary known as "posho". For clarity, it is necessary to tr:ce the background of this fallacious defence. In 1972, the society fond itsolf in finencial difficulties. In the wake of those financial difficuf ties a mecii.rg of the Managing Conittee of the Society wac convened on 28th October, 1972. That meeting was also attended by the trea Commi- ssioner, the District Party Executive Secretary, the District Nuta Secretary, an administrative officer, Labour Department officials, and employees of the society at the time. That meeting was called so as to look into wrays of Eescueing the society from total collapse. That meeting app renily decided that they must not have employe- es as such but must use nenbera of ihp society to scrve the socty and that such members should be paid allowances. These rarged between shs.500/= to shs,200/= per month per person. •. .12 A - 2 ig At. but the esmo time the office of the Prime Ninister and Second Vice President (as it was then syied) issued a circular )rnown as Pegistrarts circular No.186 of 27th September, 1972. That cidular took notice of the fact that most co-operative societies in the coiimtry could T ill afford to pay minimum wagcs to their emplyees. Tor solve this problem, the circular cao"oricod two types of employees. The first category was ih:t of employees who are not members of the particular society. ceording to the circular, these wore to be paid minimum wages. The ocond cate, gory was that of employo.s of the society who wore members of the society. These, it was stated, need not be paid minimum ;ages. On the basis of that circular the socioiys caployses in this case volunteered to work and agreed to be paid allowances. It is on this basis that the society now argues that it is not liable to contribute because those umployecs are not paid salaries but more allowances. it is in evidence, and it cannot be gainsaid, th t the cc society in this cace is lble to contribute to the fund for its employees. The question for consideration, then, is whether the allo- wances which the employees were being given per month is subjoct to the provisions of the National Provident Pind Act. To put it differently, what is that which is subject to deduction so that a share is contributed to the fund in respect of an employee? What is subject to deduction are the wges of an employee of a contributing employer. The society was an employer of the employees in question, and as ppthnted out above, the society was a contributing employer to the fund. The term "wages" is defined in section 2 of the ci. as meaning: "remuneration in money paid to an emploree under his contract of setvico or apprenticeship, as the case may he, and whEther agreed to be paid at fixed or determinable inervals of time, - in respect of normal periods of work to he prformed by ernployoe or where payment is calculated in relation to the sc-i tasks or journeys, in respect of the number of thsks or join'ncys c ompleted by the employee. where payment is calculated in relation to the volume of work done, in respect of the volume completed by the employee, and includes any allowance paid by the employer to the employee of the cost o± livi anda peruent of we not ice of rminat ion loimeetJTmphaoi s add oö. T It is thus do r th.:b the term "wages" incln.dc allowances. The nsxi question is whher unde' the contracts of service of Dorcas Zembo, Joico Jonathan, Peter Nkumbi, uih al:aria G-unda, Elizabeth Natayo and Eveline ICisongola broug't them within the meaning of the term "employees" of the Society. The answer to that question is to be found in the wordnr, of those contracts. The relevant part of those contracts, wI are - identical save for the names and figures, is the firs paragraph. That of Dorkas Zernbo reads, and this is a free t lati on: .13 -3-. " I Dorcas Zembo h.:;reby agree to he an employee an i a meL1DeT of the Kiomhoi Consumers ooperative "Society ltd. I ari prepared to serve at shs.200/= par month es my allowance whi cli is not a salary in view of the (financiar)position of the society and my oun choice to carve the society canscicntiously.' This paragranh. makes it abundantly clear that theso people were in fact 'employoos" of the society. what the contracts of service atiemnaod to do was to evade paying minimum wages to its emplorees in the spirit of the Peistrar's circular and also, by a parity of reasoning, tried to evade liability under the National Providen.t Fund Act. I am fully aware thhat the Roiietrar had vary good intentions. He was trying to save ailing co-oopoative societies from colla- psing under financial strain. That, however, is n ot the same thing as saying that it is lawful to do so. An employee is entitled under the, law to at least a minimum wage, and he is also critied to contribution to the fund by his employer where auth emlouer is a conribur to the fund, which the society in. tile na;i.T..rt case is. For these reasons, I respectfully agree '.rith learned state Attorney that there is nothing pervorc in ae reaecni.ng and conclusions of the learned resident magistrate. Tire W'S ample evidence to justify the convictions. On the face of it, the sentences would appea:.: to he manife- stly inadequate. But bearing in mind the financial difilculties of the society and the possible consequences of the conviction, I am not inclined to interfere. The sentences, therefore, will remain indsturbed. In fine, the aipoal is dismissed in its entirety. kil- B.D. CHIPFTA, JUI)GF Is ) "j (7( •')i.