20190530 TZHC Dar es Salaam 1

,ii IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 794 OF 2017 {Arising from Civil Case No. 187 of 2017) TANZANIA TRADITIONAL ENERGY AND DEVELOPMENT ORGANIZATION ................................. APPLICANT VERSUS THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND ........................ RESPONDENT RULING Date of Ruling:30/5/2019 NGWALA, J. The applicant is seeking the leave to defend the suit that has been instituted under Summary Procedure, in Civil Case No. 187 of 2017. The Application is made under the provisions of Order XXX Rule 2(2) & 3(1)(c) of the Civil Procedure Code [Cap. 33 R.E. 2002]. It is supported by the affidavit of Estomihi Ngaya Sawe, the Executive Director. of the applicant's Organisation, namely: - The Tanzania Traditional Erneg)T and Development Organisation. The prayer is resisted both in the Counter Affidavit deponed by Frank Mgaya, the legal Officer of the Respondent and the submissions. The respondents have argued that the applicant do not dispute the fact that they are indebted to the respondent - (NSSF) through its Board of Trustees of the NSSF. A sum of money to the tune of Tshs. 1 353,288,000/=. This is clearly deponed in their affidavit, that states, it is due to financial difficulties following the termination of donations from European Donors. It was contended that essentially there are no triable issues or reasons to warrant the court to grant the leave to defend the suit as per the requirement of the law. On their part Mr. Rusumo the learned advocate for the Applicant, submitted that there are triable issues to be determined by the court. The defendant has the right to be heard in terms of Article 13(6) paras (a) of the Constitution of the United Republic of Tanzania that grants for the right to be heard, as held in the case of Sadick Athumani v. R ( 1986) TLR 235 which insists on that fundamental right that should not be easily alienated. Upon hearing the learned counsels for the parties, it is a settled principle under Summary Procedure suits that the defendant has to get the leave to defend the suit. The defendant has also a burden to disclose facts sufficient to entitle him to defend in the application for leave as it is provided for under Order XXXV Ru.le 3 of the Civil Procedure Code [Cap. 33 R.E. 2002) on the Defendant showing Defence on merits to have leave to appear. That provision reads: - 3(1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which: - a) Disclose such facts as would make it incumbent on the holder to prove consideration, where suit is on a bill of exchange or promissory note; or 2 b) Disclose facts as the court may deem sufficient to support the Application. c) Leave to defend may be given unconditionally or subject to such terms as to payment into court, giving security, framing and recording issues or otherwise as the court thinks fit" In view of the above quoted provision, it is the finding of this court, that, in this case the Respondent has rightly argued that the applicant has admitted part of the amount due to him, that is a sum of Tshs. 353,288,000/= as shown under para's "7" and "8" of the affidavit, that are quoted in verbatim. "7. That although the applicants have been facing economic crisis since the year 2011 .todate, it has already paid 154,776, 000/ = being 30% of the whole outstanding/ unpaid statutory contributions amounting to totally Tshs. 353,288,000/= claimed by the Respondent. 8. That since the employees' statutory contributions are normally paid after paying the salaries the applicant has promised to pay within one year from today at least 50% of the said Tshs. 353,288, 000/ = being actual outstanding/ balance or unpaid employees' statutory contributions. The said letter Ref AAA/2017/352 dated 2 nd October, 201 7 marked "PRMS" is annexed forming paid thereof' 3 In this respect, it is quite clear under the law that the said applicant should not be granted the leave, unless the amount so admitted to be due is deposited by the defendant in court. This is the position under the Civil Procedure Code as provided for under Order XXV Rule 3 (2) of the Civil Procedure Code (Cap. 33 R.E. 2002) (quoted above) that allows courts to grant leave with conditions. Much as Mr. Rusumo forcefully argues that the applicant is objecting the modality used to claim the outstanding debt, and that the applicant has already paid a sum, of Tshs. 1,554,760/= out of the amount of Tshs. 353,288,000/= (Three Hundred Fifty-three million, three hundred eight thousand Tanzanian shillings) covering the period from June, 2011 to December, 2015. I do not think the provisions of Article 13(6) of the constitution of the United Republic of Tanzania are applicable in the circumstances of this Application. I hold so because the said article of the constitution should not be in anyway used to subjugate the power and intention of the relevant provisions of the Laws and Rules of Procedure that have been duly enacted in accordance with the very Constitution of the United Republic of Tanzania. This position was amplified by the Court of Appeal of Tanzania in the case of Mohamed Enterprises v. Masoud Nessa, Civil Application No. 33 of 2012 (CAT) at Dar es Salaam that held: - "In fact the later, the statutory prov1s1ons of Laws obtain their validity from the very provisions of the Constitution" 4 It is on that premises, that I find that the applicant has not shown if there are triable issues or a substantial defence. The defendant or Applicant is therefore not guaranteed the said leave unless and until the amount of Tshs. 197,522,000/= so admitted is deposited by the applicant/ defendant in this court. Accordingly, the leave sought is not granted until the amount ofTshs. 197,522,000/= is deposited in court. In the circumstances, I make no orders as to costs. That is each party shall bear its costs. ~' A.F. NGWALA JUDGE 30/05/2019 5 • -ao1s12019 - Coram: A. F. Ngwala, J. Applicant: Absent Respondent: Mr. Mgaya (Advocate) C.Clerk: Lulu Court: Ruling delivered in the presence of Mr. Mgaya the learned counsel for the Respondents. Court: Right of Appeal to Court of Appeal of Tanzania explained. ~' A. F.NGWALA JUDGE 30/5/2019 6