19770813 TZHC Mwanza2 1

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AT NTANZA APPELLJtTE JURI3D1CTION HIGH COURT CIMINAL APPEAL N0,116/77 (0riiral..Criina1 Case No, 146 of 1977 of the District Court 6iE Bukoba district at Bukoba Before S.B M. - . C1mrho, Esci,, Resident haqistrate). ROSHANAL E. KHI.LFIiNI 0 000000000000000000000000000 APPELLANT VALLABHrJAS U. PATEL versus THE rZEPUULIC 0000.000000000000000000000000000000000 RESPON0tIJ! CHARGE: TEN COUNTS: Failing to. pay statutory contribu4ons to the Fund during the prescribed periods c/s 15(2), 38(l)(d) of the National Proyidant Fund Act No0 36 .1 •. . of 1964 : Cap. 564 of the Laws, JUDGUENT; KATITI, J.: The appellants Roshan E. Khalfan, and Vallabhadas U. Patel - were convicted n their own pleas of guilty and fined 150/= and 200/=r.espectively,:.or distress, on each count, ..The facts to which they appear to have pleaded to unequivocally, were, that h: tio being partners in firm known as Grand iervice Station, and being registered contributing employer No, 5506.9, did fail to pay to the Board, statutory contributions within the rqiired periods, ie., from 1st Nay, 9.76 to February, .1977, Thetotal fund uncontributed was 7601=. They are no a ealinn ar'aint cc)nvict.ions, and sentences0 . What easily makes sense in their memo of appeal, is as follows That they thought, they were no longer,, liable to contihuto, as the umeloyees had been reduced to less than fpur. -. .. .. That, thy individually

were ot employers registrec to contribute to the Board, That, individually, they had not defaulted in makieg statutory contributions. That individi4a11v, they have cornmithed no offence That the fines were excessive. To reiterate what the Law is, when a conviction fl-o4Jsfr6in a p1oa of guilty, no appeal should he allowed in the case of an accused person, who has unequivocally pleaded guilty, and, has been convicted on such a plea by a subordinate court, excent where such an apoeal, relates to the extent or legality of the sentence passed, section - 313 (1) of the Criminal Procedure Code, Cap0 20, In considering this appeal, I shall therefore scan, the record with a view, to seeing whether the plea was in any way equivocal, or whether, there is anything that derogates from such a plea, and finally consider th: ~ propriety of the extent of punishment0 I shall do this by relating the facts of the case and the grounds of appeal together. The appellant's urge, that th:y did not contribute, because they thought, since the number of employees, had fallen to less than four. tbe': 'cr no 1oar liah1, t: statutory contrihutic s, -'- This does eat :o'aor in the miticro't:iers at all, where the 1st appellant assicns blood ressure as the main cause. If however, the moo was else on the appellants mind, it is not for the courts to microsconise accusePs mind e:: thinking.' This being an after

thcugh€, unrelated to the plea, end the way it was takeri or recorded, t accord it the respoctrf::ilit.y of acing rgj'.octod I' shall take grounds (2) (3) and (4) togethgr 0 I accept one thieg, the opec11 ants ckoerc c :uarvi'roj on business in partnerphio under th., style, or firm grand Service .$tetien, and the. fallacy I am hrvino in '3rou.nd.s (2) (3) and (1) is that a partner in a firm, does not, but the firn does carr on 'USLOObS and the one t..!,@refore lienle in Law. This is nc t the oo Sltiofl, - a partnershio is only a relation which contr'mi'ctually subsists between individuals careyieg on business in common for erofit. They are collectively celled a firm, not out of independent legal status., nor is it ;a legal entity. I The rmortriers carry on business, both as principals a rid as aocrits for each o.the, within th0 scope of their partnership business0 So that, it is erroneous to say the firm was resunsible, it is but the partners that must answer 0 This is to show the nosi- tion of a partner0 However, when it comes to liability of people like the epoellants, under this act we.hev, section 43 of the National Provident Fund Act placing, liability on individuals in apparent control of an association 0 It provides and I quote- ?IWh,r e 'an offence Sunder this 'Act by one association of persons, whether corporate or unihcobporate, is found to have committed with

koowlecgd, or c'onnivahc'e of, or, is attributable to any' act or dmhFeult on the part of, any person or pesons 'in 'apparent 'dontrol 'of the association of persons, the: pebson or persons, in apparent control and the asso'ci'rftic'n of persons shrill ho "deemed to have 'cdmmi±ted the offence." As it obviously appears the offonc.s, wore attributable to, default of- those id control' of this 'firm and the, apeellants being the ones, they are deemed to have con'(mitted the offences cha: god. The ap:'ellent' s' further say that the sentence was 1. excessive. The 'maxim u m fine is 2,000/= or a term nbt exceeding six months imprisonment. The flee of 2C)CI= or 150/= is definitely minimal, demanding no interference, s the p1ea was unequivocal and 'sentence minimal, the appeals ard ::'ijsnhjssed totally. ' Delivered this 13th day of August, 1977. E,U. 'KATITI, JUDGE: HIGH COURT h"iiNZA,