kiribo limited vs the board of trustees of the national social security fund 2023 tzhc 21132 19 september 2023

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY) AT MUSOMA Misc. CIVIL APPLICATION No. 3 OF 2023 (Arising from the High Court [Musoma Sub Registry] in Civil Case No. 5 of2022) KIRIBO LIMITED..................................................................... APPLICANT Versus THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND................................ RESPONDENT RULING 19.09.2023 & 19.09.2023 Mtulya, J.: Kiribo Limited (the applicant) was brought in this court under summary suit in accordance with the provision of Order XXXV of the Civil Procedure Code [Cap. 33 R.E. 2022] (the Code) by the Board of Trustees of the National Social Security Fund (the respondent) in Civil Case No. 5 of 2022 (the case) for allegation of failure to remit twenty percent of (20%) contributions of her employees' wages to the respondent in accordance to the respondent's establishing law. According to the plaint, the applicant had declined remittance of members' contributions of Tanzanian Shillings 886,033,364.08/= as outstanding sum and Tanzanian Shillings 276,744,836.56 as penalties from March 2018 to May 2020. Noting the enactment in Order XXXV Rule 3 (1) (b) of the Code, the applicant* rushed to this court and preferred Misc. Civil i Application No. 3 of 2023 (the application) praying for leave to appear and defend the case. The applicant's affidavit in support of the application shows that the applicant has been paying the contribution in the indicated period. According to the applicant, it was in the late 2018 when the company faced contractual difficulties with the main employer North Mara Gold Mine Limited (the Gold Mine). To the applicant. The Gold Mine had abruptly terminated the contract for service with the applicant, which resulted to cancellation of a number of employees' positions leading to industrial disputes. In order to substantiate the two (2) indicated subjects on breach of contract and retrenchment of applicant's employees, the applicant had registered a total of four (4) cases, namely: first, Commercial Case No. 128 of 2021 against the Gold Mine filed in this court Commercial Division; second, Misc. Commercial Application No. 66 of 2021 against the Gold Mine lodged in this court Commercial Division; third, Civil Case No. 3 of 2022 lodged at Tarime District Court at Tarime (the district court); and finally, Civil Case No. 15 of 2022 filed in the district court. Today when the case was scheduled for hearing, the applicant had hired the legal services of Mr. Emmanuel Msengezi, learned counsel, whereas the respondent had marshalled the services of Ms. Nancy Wanda, learned State Attorney. In brief submission in support of the application, Mr. Msengezi submitted that the applicant 2 has been abiding with the laws regulating payments of twenty percent (20%) of the employees' wages save for the time when the circumstances of the contract had changed. In his opinion, if there is any claim during the period of retrenchment, the claims may move to the respondent without any penalties. Replying the submission, Ms. Wanda readily interpreted the points raised by Mr. Msengezi as relevant materials to be considered in the application and registered in the case. I have had a glance of the record of the present application and provision of Order XXXV Rule 3 (1) (a) of the Code. The record shows that the applicant claims that he had been abiding with the laws regulating social security contributions up to the late 2018 whereas the respondent had cited the decline from March 2018, which is early 2018. Today in this court, Mr. Msengezi submitted that even if there are claims of contributions in mid and late 2018, the respondent may consider withdraw of penalties as the applicant was in business difficulties and had retrenched some of its employees. The law enacted in Order XXXV Rule 3 (1) (a) of the Code provides, in brief, that: this court shall give leave to appear and defend suits, upon affidavit which discloses facts, as the court may deem sufficient to support the application. The question before this court then is whether the applicant has disclosed facts sufficient to support the application. In my 3 considered opinion, the reply is obvious that the applicant has persuaded this court to believe that there are necessary materials to be registered in the case. In the circumstances of the instant application, this court cannot decline to grant the application. Having said so, the applicant is granted leave to appear and defend the case in order to register the cited facts, namely: first, payment of contributions of the monies to the respondent up to late the 2018; and second, production of materials to display that the claim of penalties is not necessary in the circumstances of the case. No costs are awarded in the application as Ms. Wanda cooperated in the course. This Ruling was delivered in Chambers under the Seal of this court in the presence of Mr. Emmanuel Msengezi, learned counsel for the applicant and in the presence of Ms. Nancy Wanda, learned 4