SALVATION ARMY Final

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY

AT MBEYA CIVIL CASE NO. 20 OF 2023 CASE REFERENCE NO. 20230920000528030 THE ATTORNEY GENERAL……………………….……………………….1ST PLAINTIFF

THE BOARD OF TRUSTEES OF NATIONAL SOCIAL SECURITY FUND.............................................................2ND PLAINTIFF

VERSUS REGISTERED TRUSTEES OF THE SALVATION ARMY.................... DEFENDANT

SUMMARY JUDGMENT 12th February & 4th March 2025 NONGWA, J. On 17th August, 2023 the Plaintiffs, The Attorney General and the Board of Trustees of the National Social Security Fund preferred a summary procedure suit against the defendant, the Registered Trustees of the Salvation Army, claiming among other things, payment of TZS 50,998,579.20 (Tanzania Shillings Fifty Million Nine Hundred Ninety-Eight Thousand Five Hundred Seventy-Nine and Twenty Cents only) being unremitted members’ contributions plus accumulated penalties. Given the nature of this suit, before concentrating on the prayers, I find it important to briefly narrate the facts. It has been pleaded that the 1 defendant is undertaking educational activities named Itundu Secondary School and has been the plaintiff’s registered contributing member as an employer with membership registration No. 210390. That under the law establishing the plaintiff, the defendant is required to remit its compulsory contribution of its employees at the rate of 10% and 10 % for the employer, making a total of 20% to be remitted in each month. It is documented that, the defendant has failed, neglected, ignored, and/or defaulted to remit Members principal contribution amounting to TZS 38,511, 000.00 (Tanzania Shillings thirty - eight million five hundred eleven thousand only covering period between January 9th 2019 to August 2022 from June

2016 to May 2020 and accumulated penalties of TZS 12,487,579.20 Tanzania Shillings Twelve Million Four Hundred Eighty-seven Thousand Five Hundred Seventy- nine and Twenty Cents only). Thus, the plaintiff claims a sum total of TZS 50,998,579.20/= from the defendant. Upon a notice for summary suit being issued and served on the defendant entered no appearance and did not seek leave which would have enabled to defend. The plaintiff was represented by Ms. Marieta Matupa, State Attorney who prayed to proceed with hearing of the matter in accordance with the dictate of the law. 2 The Attorney referring to O. XXXV of the CPC, submitted matter being brought under summary suit procedure, the defendant has no automatic right to defend unless he obtains leave of the court within 21 days from the date he was served with Notice. Service was effected on 13/10/2023 where the defendant has already remitted a total of TZS 40,428,579.00 remaining unpaid balance TZS 12,487,579.20 and since defendant has failed to file any application for leave to defend the suit, summary judgment be entered. A summary judgment is a court decision that ends a case without a full trial. It is also known as a judgment as a matter of law or summary disposition. The court only reviews the pleadings and attached documents. It is settled law that, where a suit is brought under summary procedure and where no leave to

appear and defend has been craved for and granted, the claims in the plaint are deemed to have been admitted. This is in accordance with the dictate of Order XXXV Rule 2(2) of the Civil Procedure Code [Cap 33 R.E 2019] (the CPC). The celebrated case of CRDB Bank Limited vs. John Kagimbo Lwambagaza [2002] TLR 117, pronounced the objectives of a summary suit as follows; ‘The purpose of Order XXXV: Summary Procedure "is to enable a Plaintiff to obtain Judgment expeditiously where the Defendant has in effect no substantial defence to the suit and prevent the 3 Defendant from employing delaying tactics and, in the process, postpone the day 6 of reckoning. I am of the settled view that order XXXV is self-contained in so far as it relates to suits stipulated there- under.’ Equally, it is a settled principle that, reliefs prayed for, in a summary suit must be reliefs available under summary procedure. In Prosper Paulo Massawe & Others vs. Access Bank Tanzania Ltd, Civil Appeal No. 39 of 2014 [2021] TZCA 321 (22 July 2021; TanzLII), The Court of Appeal at page 13 observed that reliefs prayed for in a summary suit must be reliefs available under summary procedure, that is based on a written agreement or a negotiable instrument or as otherwise provided for by order XXXV of the Civil Procedure Code. I have scrutinized the relevant document supporting the plaintiff’s case. The defendant is

registered as contributing member employer of the Plaintiff in accordance with the law establishing the Plaintiff through her school and was issued with Membership Registration Certificate with registration No. 210390, the certificate attached to the plaint as annexure NSSF-1. Inspection report dated 19/9/2022, exit meeting report dated 19/9/2022, long overdue un-settled statutory contribution dated 19/9/2022 and penalty on late payment of contribution, dated 19/9/2022, collectively 4 as annexure NSSF-2 and demand letters as Annexure NSSF-3. In these documents amount indicated is arrears of contribution is TZ 38,511,000.00/= and accumulated penalties of TZS 12,487,579.20/= The claims by the Plaintiff are reliefs available under O. XXXV of the CPC through section 74A (2) of The National Social Security Fund Act [CAP.

50. R. E. 2018, For clarity, it provides that; ‘Every contribution and additional contributions due to the Fund may be recovered by a summary suit under order XXXV of the Civil Procedure Code at any time within twelve years after the date on which it is due.’ It has been stated by the Attorney that a total of TZS 40,428,579.00 have been paid by the Defendant from the claimed amount stated in the plaint and the outstanding claim is TZS 12,487,579.20. This entails that the amount claimed in the plaint tallies with pleadings relied upon by the plaintiff and oral submission by the Attorney. As the defendant did not dispute the claim, this court is satisfied that the plaintiff has proved the claim and hereby summarily, enter Judgment in favour of the plaintiffs under Order XXXV Rule 2 of the CPC. This court do hereby order the defendant to pay the plaintiff the following; 5 1. Total sum of TZS 12,487,579.20 being unremitted members’ contributions plus accumulated penalties.

2. Interest on the decretal sum at the prescribed Court rate of 7% from the date of delivery of judgment until fully satisfied.

3. In the circumstances of this suit, I make no orders as to costs. It is so ordered. V.M. NONGWA

JUDGE 4/3/2025 Dated and Delivered at Mbeya this 4th March 2025 in presence of Mr. Michael Fyumagwa, State Attorney for the Plaintiffs. V.M. NONGWA

JUDGE 6