ASHARIQ SUMMARY JUDGMENT proof read

IN THE HIGH COURT OF TANZANIA SUB-REGISTRY OF GEITA AT GEITA CIVIL CASE NO. 30518 OF 2024 THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND ................................................................... 1ST PLAINTIFF THE ATTORNEY GENERAL ................................................................. 2ND PLAINTIFF VERSUS ASHARIQ CONSTRUCTION COMPANY LIMITED……………………………DEFENDANT SUMMARY JUDGMENT Date of last Order: 05/02/2025 Date of Judgment: 05/02/2025 K. D. MHINA, J. This is a summary suit involving the compulsory contribution of employees between the National Social Security Fund and the Attorney General [hereinafter to be referred to as the first and second plaintiff, respectively] against Ashariq Construction Company Limited [hereinafter to be referred to as the defendant] filed under Order XXXV of 1 the Civil Procedure Code [Cap 33 R.E. 2019] read together with section 74A (2) of the National Social Security Fund Act [Cap 50 R.E 2018] Brief facts which led to the institution of the suit are as follows; In accordance with the law establishing the 1st plaintiff, the defendant is required each month to make its compulsory contribution and that of its employees at the rate of 10% and 10%, respectively, making a total of 20% of the (member) employee's wage. However, despite the fact that the defendant's obligation by law to remit members' contributions each month has failed, neglected, ignored and defaulted to remit the members' contributions to the 1st plaintiff for some of the months and delayed remittance in some of the months which attracted imposition of the penalty. The defendant's breach of its statutory obligations has led to the default remittance of members' principal contributions, amounting to TZS 65,708,922/= which sum continues to accrue as long as it remains due and - penalties of TZS 5,413,235/= (covering various periods between November 2023 and August 2024), totalling TZS.71, 122,157/= 2 That breach caused, as required by the law, the plaintiff, on numerous occasions, demanded the defendant perform the said statutory obligation on remittance of members' contributions, but the efforts proved futile. The above facts triggered the plaintiffs' filing of this suit under a summary procedure to seek relief from this court. On 03 December 2024, this Court ordered the defendant to be served with a summons and to file an application for leave to appear and defend the suit (if he wishes) within 21 days, as per the law. On 14 January 2025, Mr. William Mhina, State Attorney appeared for the plaintiffs while Mr. Hussein Jumanne, documentation officer of the defendant appeared. Mr. Jumanne raised a concern that they were served by the plaint on 10 January 2025, so he requested for extension of time. That prayer was granted by this Court and another 21 days from 10 January 2025 expired on 31 January 2025. Today, when the suit was called for hearing, Mr. William, the State Attorney for the plaintiffs, informed the Court that the defendant failed to 3 file leave to appear and defend the suit after the extension of 21 days expired on 31 January 2025. Therefore, he prayed for summary judgment under the provisions of Order XXXV Rule 2 (2) (a) and (b) of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2019 read together with section 74A (2) of the National Social Security Fund Act [Cap 50 R.E 2018] In the plaint, the plaintiffs prayed for; i. The Defendant to be ordered to pay the sum of TZS 71,122,157.00 (Tanzanian Shillings Seventy-One Million One Hundred Twenty-Two Thousand One Hundred Fifty-Seven Only) being un-remitted members' contributions and penalties due and payable to the Plaintiff by the Defendant. ii. Interest on the decretal sum at the Court rate of 7% from the date of delivery of Judgment until the same shall be fully satisfied; iii. Cost of and incidental to the filing of the suit; and iv. Any other and further relief as this Honorable Court shall deem fit and just to grant. 4 On the other hand, Mr. Biko Mwakila (Defendant’s accountant) who appeared for the defendant prayed for another date to settle the issue because the decision maker in the company was sick. Flowing from above, the law is clear that when the defendant is served with the summons to file leave to appear and defend the suit but fails, the plaintiff, in terms of Order XXXV rule 2 (2) (a) and (b) of the CPC, is entitled to judgment as prayed for in the plaint. See: CRDB Bank Limited vs. John Kagimbo Lwamhagaza [2002] TLR 117. In this matter despite being given the extension of time to file leave to appear and defend the summary suit, the defendant failed to file the leave. Further, the reason given by Mr. Mwakila is devoid of merits, because, on 14 January 2025, they requested for extension of time to file leave, the prayer which this Court granted, but they failed to honour it. Therefore, in terms of Order XXXV Rule 2 (2) (a) and (b) of the CPC and section 74A (2) of the NSSF Act, Cap 50, I enter summary judgment for the Plaintiffs and proceed to decree as follows; a. The defendant is ordered to pay TZS 71,122,157.00 which includes unremitted members' contributions plus accumulated 5 penalties. b. The defendant is ordered to pay a 7% court rate on the decretal amount from the date of delivery of the Judgment until its full satisfaction and c. Cost of this suit. It is so ordered. K. D. MHINA JUDGE 05/02/2025 Court: The right to appeal explained to the parties. 6 K. D. MHINA JUDGE 05/02/2025 7