civil decision 2025 04 08 12 38 37

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT BUKOBA CIVIL CASE NO. 000022439 OF 2024 KAKOZA KAZMIRY LUTONDA & 7 OTHERS .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF

VERSUS JUNIOR CONSTRUCTION LTD & 3 OTHERS .............................. RESPONDENT /

DEFENDANT

RULING BANZI, J, The plaintiffs have filed this suit seeking orders of this Court among others, to compel the second defendant to pay them TZS 97,092,751.00 being the contributions deducted from their salaries and remitted to the second defendant by the first defendant. Brief facts from the pleadings and annexures reveal that, in 2015, the first defendant whose head office is situated at Shinyanga, entered into employment contracts with the plaintiffs and upon being recruited, they were stationed at Tulawaka gold mine within Biharamulo District. As members, their monthly contributions were remitted to the account of second defendant, Kahama regional office after deduction from their salaries. However, things did not go well when they were terminated from their employment in 2017 due to suspension of mining activities at Tulawaka gold mine. Being terminated, they were informed by the first defendant to go to the second defendant to collect their terminal benefits, however, their efforts bore no fruits and as a result they filed this suit. After being served with plaint, the second, third and fourth defendants filed their written statement of defence (WSD) and in addition, they raised preliminary objection on one point, thus: “The court has no jurisdiction to entertain the matter as the plaintiffs have filed this case without exhausting local remedies.” Page. 1 At the hearing of

preliminary objection, plaintiffs were represented by Mr. Gerase Reuben, learned advocate whereas, Mr. Nestory Lutambi and Ms. Zainabu Juma, the learned State Attorneys, appeared for the second, third and fourth defendants. The first defendant did not entered appearance. Apart from such point, the court suo motto raised another issue concerning place of suing to the effect that, this suit is incompetent for being filed in the wrong court. Arguing in support of preliminary objection, Ms. Juma submitted that, the plaintiffs had not exhausted local remedies available under the National Social Security Fund Act [Cap. 50 R.E 2018] (the NSSF Act) and the Social Security Act [Cap. 135] as amended by the Written Laws (Miscellaneous Amendments) (No.

6) Act of 2019 which provide for internal mechanisms to deal with grievances relating to benefits before they are referred to the court of law. She argued that, according to sections 81(1) and 82(3) (5) of the NSSF Act, all claims in respect of benefits must be determined in the first instance by the Director General of NSSF and where the claimant is dissatisfied with the decision of the Director General, he is required to file review to the Division (former Social Security Regulatory Authority) pursuant to section 82(3). If the claimant is aggrieved with the outcome of review by the Division, he may file the suit before the court of law for adjudication as directed under section 44(3) of the Social Security Act. According to her, through their annexures, the plaintiffs have not satisfied the court if they fulfilled the requirement of the law by exhausting the prescribed remedies before filing this case. To bolster her submission, she cited the cases of Parin A. A. Jaffer and Others vs Abdallah Ahmed Jaffer and Two Others [1996] TLR 110 and Michael Mwinuka and 428 Others vs Tanzania Zambia Railway Authority and Two Others (Civil Appeal No. 84 of 2018) [2023] TZCA 17475 (7 August 2023) TanzLII. In the latter case, it was emphasised that, for claims involving social security benefits, the aggrieved party has to refer his complaints to the Director General of the Fund and should

the need arise, to the Division. In line of the cited provisions and the referred case law, according to her, courts of law have no jurisdiction to entertain a claim for social security benefits directly unless the claim has been unsuccessfully referred to the Director General of NSSF and the Division. Therefore, failure to exhaust those internal remedies under NSSF Act, this suit was prematurely filed and should be struck out. Reverting to the issue raised by Court, it was her submission that, under section 18 of the Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC), the suit should be filed where the cause of action arose or where the defendant resides or works for gain. According to her, the first defendant’s place of business is in Kahama and the plaintiffs were employed in Kahama. Apart from that, the plaintiffs’ contributions were remitted to NSSF Kahama and Biharamulo was just the working station of the plaintiffs. In that regard, the plaintiffs were supposed to institute their suit in Kahama and not Bukoba. Citing the case of Abdallah Ally Seleman t/a Ottawa Enterprises (1987) vs Tabata Petrol Station Company Limited and Another (Civil Appeal No. 89 of 2017) [2019] TZCA 636 (29 August 2019) Page. 2 TanzLII, Ms. Juma contended that, as Kahama is within the High Court of Tanzania, Shinyanga Sub- Registry, the plaintiffs ought to have instituted this suit at Shinyanga.

According to her, with such impropriety, this court has no jurisdiction to entertain this suit and the same should be struck out. On his side, Mr. Lutambi insisted that, the cause of action arose at Kahama because the contributions were deposited to NSSF Kahama Branch. He added that, though the High Court has no limit on jurisdiction, each sub-registry of the High Court has its geographical jurisdiction limit as per High Court Registries (Amendment) Rules, GN No. 853A of 2023, whereby, paragraph 4 to the Schedule provides that, jurisdiction of High Court of Tanzania, Bukoba Sub-Registry is limited within Kagera Region. In that regard, this court lacks jurisdiction to entertain this suit. He prayed this suit to be struck out with costs. In response, Mr. Gerase contended that, the objection has no merit as per section 82(5) of the NSSF Act, it was correct for the plaintiffs to refer this matter to this court. According to him, before coming to this court, the plaintiffs exhausted the available remedies as explained under paragraph 14(i) and (ii) of the plaint but how they were exhausted is matter of facts. In his view, the cited case of Michael Mwinuka (supra) is distinguishable because in that case, the plaintiffs did not show the local remedies which they exhausted before coming to court. He added that, through paragraphs 9 and 10 of the WSD, there is proof that, the local

remedies were exhausted before coming to court. Throwing the ball to the second to fourth defendants, Mr. Gerase claimed that, they did not explain how the plaintiffs did not exhaust the local remedies. Besides, according to him, the law does not provide for modality of exhausting remedies and if the defendants demand any document as proof, that will be a matter of evidence. Reverting to the point raised by court, it was his submission that, the place of suing is matter of evidence and not law. According to him, the plaintiffs were recruited and working at Biharamulo. Also, their contributions were deposited by the first defendant at Biharamulo. He therefore prayed for the objections to be dismissed so that the matter may be heard on merit. In rejoinder, Mr. Lutambi contended that, the plaintiffs have not attached anything, apart from their narrations, showing that they exhausted the available remedies. Submitting on whether the objection sufficed to be a point of law, Mr. Lutambi argued that all points are legal issues because they emanate from provisions of the law. According to him, the wording in paragraph 9 of the WSD does not make their objection to be a matter of evidence. Apart from that, he contended that, paragraph 10 of the WSD, does not indicate that they have acknowledged that, the plaintiffs had exhausted local remedies. He added that, the first defendant who was

the employer of the plaintiffs admitted that, the contributions were deposited in Kahama and the address of the first defendant is Shinyanga, hence, the Page. 3 fact about contributions to be deposited at Biharamulo is the submission from the bar. Winding up his submission, Mr. Lutambi insisted that, both points have merit and the same be struck out with costs. Having considered the submissions from learned counsel for both parties, I find it pertinent to start with the issue raised by this Court and where the need arises, I will revert to the objection raised by defendants. Pursuant to section 18 of the CPC, the suit should be filed where the cause of action arose or where defendant resides or carries on business or personally works for gain. Also see the case of Abdallah Ally Selemani (supra). In perusing the pleadings with annexures filed by both parties, the following were clearly stated; in their plaint, the plaintiffs contended that, the address of the first defendant is P.O. Box 80488, Dar es Salaam. Also, in their WSD, the second, third and fourth defendants annexed the letter that was written to the first defendant through this addressed; P.O. Box 70, Kahama. Furthermore, in his letter dated 15th April, 2020 on commitment to pay arrears, the first defendant addressed her head office to be at Shinyanga with a branch in Dar es Salaam. In the letter dated 19th March,

2021, the first defendant acknowledged to have employees at Biharamulo but their NSSF account is at Kahama. From the records, it is not disputed that, the plaintiffs were working at Biharamulo Tulawaka Gold Mine, however, as per records, they were employed at Kahama and their contributions were remitted at NSSF Kahama where the first defendant has account. That being the case, can it be said that as the plaintiffs’ contributions were deposited at Biharamulo? The answer is definitely No! In his submission, Mr. Gerase has not shown anyhow that the first defendant was remitting his employees’ contributions to NSSF Biharamulo. In that regard, it goes without saying that, the first and second defendants’ working businesses are at Kahama. As it was correctly stated by Mr. Lutambi, according to paragraph 4 of the Schedule to the High Court Registries (Amendment) Rules, GN No. 853A of 2023, the jurisdiction of this court is limited within Kagera Region. Hence, the place of suing ought to be at the place where Kahama is situated, that is the High Court of Tanzania, in the Sub-registry of Shinyanga. Thus, this court has no jurisdiction to entertain this suit. Having found that, this suit is incompetent before this court, I do not see the need to determine the objection raised by defendants as the same has to be determined by the court with competent jurisdiction, High Court of Tanzania,

Shinyanga Sub-registry. Consequently, this suit is hereby struck out for want of jurisdiction. If still interested, the plaintiffs may file their complaint at the High Court of Tanzania, Shinyanga Sub-Registry which is the competent court to adjudicate the matter. Owing to the nature of the matter, I make no order as to costs. It is accordingly ordered. Page. 4 Dated at BUKOBA this 4th of April 2025 . I. K BANZI

JUDGE OF THE HIGH COURT Page. 5