NSSF VS KIRIBO

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) CIVIL CASE No. 5 OF 2022 (Referenced: 20220201000399218) 1. THE BOARD OF TRUSTEES OF NATIONALS SOCIAL SECURITY FUND ................... PLAINTIFFS 2. THE ATTORNEY GENERAL I Versus M/S KIRIBO COMPANY LIMITED.................. DEFENDANT CONSENT JUDGMENT 17.12.2024 & 17.12.2024 Mtulya, J.: The Board of Trustees of the National Social Security Fund and Attorney General (the plaintiffs) had approached this court and lodged Civil Case No. 5 of 2022 (the case) against M/S Kiribo Company Limited (the defendant) for allegation of failure to remit twenty percent (20%) of statutory contributions comprising of ten percent (10%) of the employees' wages and other ten percent (10%) from the defendant's contributions. The stated sum was to be paid to the first plaintiff in accordance to the enactment of the National Social Security Fund Act [Cap. 50 R.E. 2019]. Reading the complaint registered by the plaintiffs in the case, it shows that the defendant had declined remittance of compulsory contributions of Tanzanian Shillings 886,033,364.08/= as outstanding sum and Tanzanian Shillings 276,744,836.56 as penalties for the period i between March 2018 to May 2020. When the case was scheduled for hearing in this court on 12th December 2024, the parties had realized that the contest in the case is not decline statutory payments, but the dispute concerns reconciliations of transactions and data in physical and electronic payments systems of the parties hence had decided to enter into conversations and round table discussions to re-check and examine the data and settle their differences out of court by way of settlement agreement. Yesterday, 16th December 2016, the defendant had agreed to settle the matter and promised to pay the plaintiffs a total of Tanzania Shillings Seven Hundred Million (700,000,000/Tshs.) out of the claimed statutory contributions sum by way of installments to be paid from January 2025 to October 2027. In order to signify the settlement of the dispute by amicable procedures, the parties had marshalled their learned minds in this court today morning to register the settlement agreement and explain the materials drafted in the settlement. The settlement agreement duly signed by both parties was registered in the case as Attachment 'A' and formed part of the court record in the case. According to Ms. Neema Mwaipyana and Ms. Nancy Wanda, [earned State Attorneys, who had appeared for the plaintiffs in the case, the agreement enjoys legal support of Order XXIII Rule 3 of the Civil Procedure Code [Cap. 33 R.E. 2022] (the Civil Code) and this court may end the dispute by consent judgment. The dual submitted 2 further that the complaint on penalties is not displayed in the settlement agreement, but shall be resolved in a fresh and separate suit under the leave of this court in the instant case. The materials brought by Ms. Mwaipyana and Ms. Wanda were not contested by the defendant's learned counsel, Mr. Samson Samo. According to him, the parties had conversations and discussions to end their differences in amicable way hence he cannot dispute the settlement of the parties as they are conversant with their differences. Mr. Samo also supported the prayer on fresh and separate suit in favor of the claim of penalties. I have scanned the record of the instant case, the lodged settlement agreement in Attachment 'A' and enactment of Order XXIII Rule 3 of the Civil Code. In brief, the record shows that the case was scheduled today for hearing. However, the course was changed by the parties in favor of the amicable settlement of the case out of the court. The move is cherished by the newly enactment of section 3A(1) of the Civil Code on just, expeditious and affordable resolution of civil disputes. Similarly, there is specific and traditional enactment of Order XXIII Rule 3 of the Civil Code which allows compromising of suits. The dual cited enactments stem their roots in the provisions of article 107A (2) (b), (d) & (e) of the Constitution of the United Republic of Tanzania [Cap. 2 R.E. 2002] on enhancing dispute resolution without undue delay or technicalities. 3 The move taken by the parties in the instant case also enjoys backing of this court in a bunch of precedents (see: The Attorney General & Board of National Social Security Fund v. Kopafasta Mier ofinace Limited, Civil Case No. 6256 of 2024; The Attorney General & Board of National Social Security Fund v, Kilimanjaro Truck Co. Ltd, Civil Case No. 7740 of 2024; and Jaffrey Indi. Sian Ltd vs M/s Beijing Construction Engineering Group Limited, Commercial Case No. 38 of 2021). Our apex court, the Court of Appeal, is also encouraging the course preferred by the parties and considers it as a suitable procedure for easy resolution of disputes (see: Motor Vessel Sepideh and Another vs. Yusuph Mohamed Yusuph and two Others, Civil Application No.237 of 2013). •. • > . Having the indicated enactments and precedents, and considering the prayers registered by the plaintiffs' State Attorneys with the support of the defendants' learned counsel, this court is moved to mark this case completed by way of settlement agreement registered in this case as Attachment 'A'. The terms and conditions duly signed by the parties in the Attachment 'A" form part of this judgment and failure to comply with the terms and conditions shall attract the traditional consequences enacted in-the Civil Code. In conclusion, a friendly gesture was then displayed by Ms. Mwaipyana and Ms. Nancy in praying for leave to lodge fresh and separate suit in favor of the claim of penalties in the case. The move was not resisted by Mr. Sarno and this court does not see any reason to 4 discourage the course. This court is empowered under section 95 of the Civil Code to issue any order for interest of justice. The prayer registered by the plaintiffs' learned minds is for interest of justice of the parties and may be granted as I hereby do so. The plaintiffs are granted leave to file fresh and separate suit for the claim of penalties in the case and must do so within ninety (90) days from the date of this judgment. As the case was completed by way of settlement agreement and consent judgment was entered for the parties, I see no any reason to issue an order for costs. In any case, the parties have drafted Item 5 of the Attachment 'A' to decline costs. In that case, each party shall bear its own costs. Court: This Consent Judgment was delivered in Chambers under the Seal of this court in the presence of Ms. Neema Mwaipyana and Ms. Nancy Wanda, learned State Attorneys for the plaintiffs and in the presence of Mr. Samson SamoJearned counsel for the defendant. F. H. F^ulya^) Judge 17.12.2024 5