LUSOMBAGIJA RULING 1 PR FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUB - REGISTRY OF GEITA) AT GEITA CIVIL CASE NO. 28739 OF 2024 MONICA LUSOMBAGIJA NKALI (As the Administratrix of the late John Gervas Kumalija) ---------------------------------------------------PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF NATIONAL SOCIAL SECURITY FUND (NSSF)--------1ST DEFENDANT ATTORNEY GENERAL----------------------------------2ND DEFENDANT RULING Date of last Order: 27/01/2025 Date of Ruling: 24/02/2025 K. D. MHINA, J. This ruling was triggered by preliminary objections raised by the defendants against the plaintiff’s suit over the claims of payment of TZS. 87,000,000/= being the amount due to the beneficiaries of the late John Gervas Kumalija. 1 The facts of this matter briefly, as can be gleaned from the pleadings, is that the plaintiff alleges that she was appointed to administer the estate of the late John Gervas Kumalija. While in the course of her duties in collecting the assets, debts and liabilities of the deceased, she approached the 1st defendant’s office in Geita to access the account of the late John Gervas Kumalija, who was a member of the defendant’s fund, but she was denied. Further, she alleges that the beneficiaries of the late John Gervas Kumalija particulars were submitted to the 1st defendant’s Regional Office at Geita, and the same was received. However, despite several efforts in correspondence and physical follow-up to secure what was due for payment to the beneficiaries, the efforts remain in vain. Later, the complaint was referred to the defendant's headquarters in Dar es Salaam. Therefore, having exhausted all the means, on 13 February 2024, she decided to issue a 90-day notice of her intention to sue the defendants. The above “controversy” moved the plaintiff to seek the following reliefs from this Court; 2 i. An order against the defendant to pay TZS. 87,000,000/= being the amount of money due to the beneficiaries of the late John Gervas Kumalija ii. General damages and iii. Costs of the suit. In response, the defendants; One; vehemently disputed the claims by filling a written statement of defence, responding that upon receiving the plaintiff’s claims, the beneficiaries were paid their survivor’s benefits through their submitted Bank accounts according to the laws governing the 1st defendant. Two, confronted the plaint with a notice of a preliminary objection that canvassed two grounds, namely; i. This Court lacks jurisdiction to entertain this matter as the Plaintiff has failed to exhaust the available statutory remedies before instituting the suit. ii. The Plaintiff has sued the wrong party, as the proper legal entity for such suits is the Board of Trustees of NSSF, not the Registered Trustees of NSSF. 3 As it is trite, this Court has to deal with preliminary objections first because once a court is seized with a preliminary objection (s), it is required to determine the objection (s) before going into the merits or the substance of the case or application. Therefore, on 27 January 2025, following the plaintiff’s prayer to argue the preliminary objection by way of written submissions, this court ordered the parties to file their respective submissions as follows; i. The defendants to file submission in chief on or before 3 February 2025. ii. The plaintiff to file the reply on or before 10 February 2025, and iii. The defendants to file a rejoinder (if any) on or before 13 February 2025. Further, the suit was slated for a ruling on 24 February 2025. However, only the defendants have complied with the scheduling order fixed by this Court. They lodged their submissions in chief on 3 February 2025; timely. On her side, the plaintiff failed to file her written submissions against the preliminary objections within the prescribed time, which expired on 10 February 2025. 4 In a situation such as the above, the law is already settled on the consequences upon a party who fails to comply with orders of filing written submissions. The Court of Appeal in Godfrey Kimbe vs. Peter Ngonyani, Civil Appeal No. 41 of 2014 (Tanzlii), while referring to its earlier decisions in National Insurance Corporation of (T) Ltd & another vs. Shengena Limited, Civil Application No. 20 of 2007 and Patson Matonya vs. The Registrar Industrial Court of Tanzania & another, Civil Application No. 90 of 2011 (both unreported), it held that; "...failure by a party to lodge written submissions after the Court has ordered a hearing by written submissions is tantamount to being absent without notice on the date of hearing." On the way forward, the leeway is provided in Godfrey Kimbe (Supra) that the court shall proceed to determine the preliminary objection based on submission in chief. In the cited case, after the applicant failed to respond to the submission in chief, the Court of Appeal held that; “In the circumstances, we are constrained to decide the preliminary objection without the advantage of the arguments of the applicant”. 5 In the instant suit, in supporting the preliminary objection, the submission in chief was duly drawn and filed by Ms. Aisha Salehe Mohammed- State Attorney from the Directorate of Legal Services Office, National Social Security Fund. To support the 1st part of the preliminary objection, Ms. Mohamed submitted that the Court lacks jurisdiction to entertain this matter because the Plaintiff had failed to exhaust the remedies before filing the suit as stipulated under the National Social Security Fund Act, Cap. 50 R.E. 2018 and Social Security Act Cap. 135 as amended by the Written Laws (Miscellaneous Amendments) No. 6 of 2019. In amplifying her stance, the learned state attorney argued that the claim of TZS. 87,000,000/= being the amount of money due to the beneficiaries of the Late John Gervas Kumalija, who was a member of the National Social Security Fund (NSSF), fall under Social Security benefits that are survivor's benefits as provided under Section 21(l)(c) of the National Social Security Fund Act Cap. 50 R: E 2018. She explained that the laws governing those social security benefits provide internal mechanisms through which grievances related to benefits, 6 contributions or administrative actions must be referred to before referring them to the Court of Law. She specifically cited Section 81 (1) of the NSSF Act, which mandates that claims involving benefits be first referred to the Director General of the 1st defendant, underscoring the importance of this internal process. Ms. Mohamed further explained that the procedure also provides that an aggrieved party may apply for review to the Social Security division within the Ministry of Works dealing with Social Security in case of dissatisfaction. This is per section 82 (3) of the NSSF Act and section 44(3) of the Social Security Act Cap. 135, as amended by the Written Laws (Miscellaneous Amendments) No. 6 of 2019. To bolster her submission, she cited Parin A. A Jaffer and Others vs. Abdalla Ahmed Jaffer and Two Other [1996] TLR 110, where it was held that; if the law provides extra-judicial machinery, the extra-judicial machinery should be exhausted first before subjecting a matter to the judicial process. She also cited Michael Mwinuka and 428 Others vs. Tanzania Zambia Railway Authority and 2 Others, Civil Appeal No. 84 Of 2018 (Tanzlii), where the Court of Appeal held that; in a dispute involving 7 social security benefits, an aggrieved party should refer the complaint in the first instance to the Director General of the Fund, and should the need arise, to the Social Security Regulatory Authority. She concluded by submitting that failure to exhaust internal remedies under the NSSF Act renders this suit premature and should be struck out. On the 2nd limb of the preliminary objection, Ms. Mohamed forcefully submitted that the plaintiff had sued the wrong party. She argued that the plaintiff had sued the Registered Trustees of NSSF, which was not the proper legal entity to be sued in matters concerning the operations of NSSF. The correct party to sue was the Board of Trustees of NSSF, as established under Section 53(1) and (2)(a) of the National Social Security Fund Act, Cap. 50 R.E. 2018. Under that provision of law, the Board is the authority capable of suing and being sued. She cemented her submission by citing Lujuna Shubi Balonzi Vs. Registered Trustees of Chama Cha Mapinduzi [1996] TLR 203, where it was held that; "For an entity to sue or be sued, it must be either a natural 8 person or a corporate body created under the law". She further argued that this anomaly renders the suit fatally defective, as the sued party’s name does not exist under the eyes of the Law. On the remedy, she submitted that the consequence of suing a wrong party as trite law is for the suit to be struck out in the Court's registry. She substantiated that by citing Sendama General Enterprises Co. Ltd vs. Magu District Executive Director and Another, Civil Case No. 24 of 2022 (Tanzlii). Having carefully examined pleadings and the one-side submission from the defendants who raised the preliminary objection, I will start with the 1st limb of preliminary objection. In the 1st limb, the subject matter for determination is whether the suit was filed prematurely or not. The entry point on this is the cited case of Parin A. A Jaffer (Supra), where it was held that; "Where the law provides extra-judicial machinery alongside a judicial one for resolving a certain dispute, the extrajudicial 9 machinery should in general be exhausted before recourse is had to the judicial process". That means before a claim can be espoused at the Court, the aggrieved party must have exhausted the remedies provided by the law in which the claim arose so that the extra-judicial machinery should have an opportunity to redress it by its own means within the framework of its own rules and procedures. The complaint raised by the defendants in the 1st limb of objection was simply that the plaintiff failed to exhaust the remedies provided under the NSSF Act and Social Security Act before filing this suit. From above, it is trite that point (s) of law raised in preliminary objection must be elucidated from what has been pleaded or implied from the pleadings. See Hotels and Lodges (T) vs Attorney General and Chapwan Hotels Limited (2013) TLR 250 and in Salim. O Kabora vs. Tanesco and two others, Civil Appeal No. 55 of 2014 (Tanzlii). Further, pleadings do not mean only plaint, written statement of defence and reply to the written statement of defence but also, the documents attached or annexed to the pleadings form part of the 10 pleadings. See also Airtel Tanzania Limited vs. Ose Power Solutions Limited, Civil Appeal No. 206 of 2017 (Tanzlii). Therefore, in this suit, having gone through the pleadings, specifically the plaintiff’s plaint, I find that the plaintiff alleged that after the dispute was not solved at the 1st defendant’s branch at Geita, she went to the defendant's headquarters in Dar es Salaam. This is what she averred in paragraphs 11 and 12; “11. That the plaintiff, having failed to obtain any meaningful help from the defendant’s branch at Geita, went to the headquarters of the defendant in Dar es Salaam. Annexed hereto is the copy of the correspondence with the defendant’s branch office at Geita the same marked annexure “ E” collectively. 12. That the plaintiff has exhausted all the means decided to issue a 90 days notice of her intention to sue, her notice dated 13th February 2024, a copy of which is annexed hereto the same marked annexure “F” the plaintiff craves for leave to refer to it and forming part of this plaint”. 11 Annexure “E” attached to the plaint was the plaintiff’s complaint letter dated 10 January 2023 to the Director General of the 1st defendant. She asked for the progress after the Geita Branch of the 1st defendant referred her complaint to the headquarters. Further, in paragraph 12 of the plaint, the plaintiff alleged that she exhausted all means. On this, as submitted by Ms. Mohamed, the laws and procedures governing claims arising out of social security benefits are as follows: Section 81 (1) and 82 (3) of the NSSF Act provide that; 81 (1)" All claims to benefit shall be determined in the first instance by the Director-General." 82 (3) "Where a person is dissatisfied with the decision on a claim to benefits or question as to liability, he may apply to the Authority for review." The authority referred to under section 82 (3) of the Act is defined under section 2 as the Social Security Regulatory Authority established under the Social Security (Regulatory Authority) Act. Therefore, from above, a party claiming social security benefits must first refer the dispute to the Director-General, in the case of this suit, the 12 Director General of NSSF. If a party is aggrieved, shall refer the grievance for review before the Social Security Regulatory Authority. The exact position is also provided under cited section 44(3) of the Social Security Act Cap. 135; however, under the Written Laws (Miscellaneous Amendments) No. 6 of 2019, the word “authority” was deleted and replaced by the word “division”. The section reads; “44.- (1) Any member or beneficiary who is aggrieved by a decision of a scheme under laws or trust deed establishing the respective scheme may apply in writing to the Authority for review of the decision”. Further, under the amendment, Division is defined as “the division responsible for social security within the Ministry for the time being responsible for social security matter”. Thus, as per the discussion above, the dispute settlement mechanism in relation to social security benefits is a “self-contained regime of its own” before an aggrieved party decides to file a matter in a court of law. It has its own procedures of first exhausting the remedies within the framework of social security acts. 13 In the instant suit, as rightly submitted by Ms. Mohamed, the procedure was first to refer the dispute to the Director General of NSSF as per section 81 (1) of the NSSF Act. In case of discontent, an aggrieved party should file a review to the Social Security division within the Ministry for the time being responsible for social security matters as per section 82 (3) of the NSSF Act and section 44(3) of the Social Security Act Cap. 135, as amended by the Written Laws (Miscellaneous Amendments) No. 6 of 2019. Reverting to the instant suit, as per the plaint and its annexures, the plaintiff failed to satisfy that requirement before filing this suit. Apart from alleging that she referred the complaint to the 1st defendant's headquarters in Dar es Salaam, nothing was averred or annexed if there was a decision by the Director of the 1st defendant. The plaint also does not indicate if the plaintiff was aggrieved by the decision of the Director; she referred the matter for review as per section 82 (3) of the NSSF Act and section 44(3) of the Social Security Act Cap; 135, as amended by the Written Laws (Miscellaneous Amendments) No. 6 of 2019. In the circumstances such as this, the Court of Appeal in the cited case of Michael Mwinuka (Supra) held that; 14 "The unlimited jurisdiction which the High Court enjoys is subject to, among others. Section 81 and 82(3) and (5) of the NSSF Act when it comes to claims involving social security benefits. This is because an aggrieved party has no choice except to refer his complaint in the first instance to the Director General of the Fund and, should the need arise, to the Social Security Regulatory Authority." It is clear from the provision of laws and case law cited above that before filing a suit involving social security benefits at a court of law, there must be compliance with procedures provided under the NSSF and Social Security Acts. Failure to exhaust those remedies means the suit was filed prematurely and thus incompetent. Flowing from above, since the 1st preliminary objection is decisive and disposed of the suit, I don’t see the necessity of determining the 2nd limb of preliminary objection. In the event, the 1st limb of preliminary objection is hereby sustained and the suit is struck out for being incompetent. Each party to bear his or her own costs. It is so ordered. 15 K. D. MHINA JUDGE 24/02/2025 Court: The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 24/02/2025 16