Piru Bhahram Mohamed v. R., Crim. App. 56-DSM-72, 12/4/72, Mwakasendo, Ag. J.

 

Piru Bhahram Mohamed v. R., Crim. App. 56-DSM-72, 12/4/72, Mwakasendo, Ag. J.

The appellant was convicted on four counts alleging breaches of various provisions of Labour enactments. The learned judge described the charges as “so badly drafted as to be almost incomprehensible.”

            Held: (1) “[The fifth count ] alleges failure to prepare or cause to be prepared and maintained a record of Oral Contract of service in respect of an employee contrary to section 35 (1), (2) and (3) of the Employment Ordinance, Cap. 366 ….. [In Mambo Shoor Bar v. R. (1971) H.C.D. n. 230] my learned brother Onyiuke, J. said at page 3 of his judgment: ‘Coming to count I of the charge there appears to be a case of duplicity. 3 separate offences were lumped together in one count. Failure to prepare or maintain or issue a copy of an oral contract is each a separate offence. The charge as it stood must have gravely embarrassed the appellant …..’ I entirely agree with my learned brother that the section under which the appellant in this case was charged creates not one but three separate offences which must be preferred separately if the prosecution wish to prosecute an accused person on all three, although he need for this course of action would rarely arise in practice”.(2) “Looking at the facts of the present case I cannot see that there is anything to distinguish the present case from [D.P.P. v. Gymkhana Club Arusha Criminal Appeal 411 of 1964 and D.P.P. v. Fazal Nazerali & Co. Ltd. Dar es Salaam Crim. App. 479 of 1964]. In this case, as in the two earlier cases the offence alleged under on single count was a failure to pay the prescribed minimum wages over a period of many months, in fact thirty-nine months. If the Republic wished to proceed against the accused in respect of all thirty-nine months, there were two courses open to them. One, the more cumbersome of the two, would have been for them to frame a charge in respect of each alleged failure, making a total of thirty-nine counts altogether. The other method, which is simpler and neater than the first, would be or the prosecution to frame one charge in respect of the alleged failure to pay the minimum wages and then give “notice of intention” to the accused that on his being found guilty on the preferred charge, evidence of any like contravention on the part of the accused shall be given before the court in respect of any period during the twelve months immediately preceding the date of the offence – vide sub-section (3) of section 12 of the Regulation of Wages and Terms of Employment Ordinance ….. I see no alternative to declaring the proceedings on Count 2 a complete nullity.” (3) “…….. Count No. 1 …….. alleged failure to pay wages to an employee contrary to sections 194 (a) and 1954 of the Employment Ordinance. In this count as in count 2 the prosecution charged the accused with the failure to pay wages to an employee, in one single count, what ought to have been fifteen separate counts. There can be no dispute that this count, like count 2, is bad for duplicity”. (3) Appeal allowed and convictions quashed.