NSSF vs Chato CU Final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA CIVIL CASE NO. 2336 OF 2025 THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND….……………………….…..1ST PLAINTIFF ATTORNEY GENERAL……………………………………….……….…2ND PLAINTIFF VERSUS CHATO CO–OPERATIVE UNION LIMITED …….………...…………. DEFENDANT SUMMARY JUDGEMENT Date of last order: 28/02/2025 Date of Judgement: 05/03/2025 MWAKAPEJE, J.: The Plaintiffs herein, by way of summary procedure outlined in Order XXXV of the Civil Procedure Code, Cap. 33, R.E 2019, initiated this suit against the Defendant seeking the following orders, as I reproduce them hereunder: 1. The Defendant to be ordered to pay the sum of Tshs. 123,467,948.5/= (Tanzanian Shillings one Hundred Twenty-Three Million, Four Hundred Sixty-Seven Thousand Nine Hundred Forty-Eight and Five Cents.) being unremitted members' contributions and penalties due and payable to Plaintiff by Defendant as per paragraph 10 of the Plaint. 2. 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; Page 1 of 6 3. Cost of and incidental to the filing of the suit; and 4. Any other and further relief this Honorable Court shall deem fit and just to grant. Before digging into the essence of the matter, this court finds it necessary to recount the facts that have led to the current suit as outlined in the plaint. The defendant was enlisted as a contributing employer member of the 1st plaintiff with a Membership Certificate of Registration Number 392979 as per annexure "NSSF- 1". It is in accordance with the law establishing the plaintiff that the defendant is mandated to make obligatory contributions every month, as well as those of its employees, at a rate of 10% for each, totalling 20% of the employee's wages. It is further alleged that despite this legal requirement, the defendant has failed, neglected, or defaulted in remitting the members' contributions to the 1st plaintiff on a monthly basis, resulting in delayed payments that have incurred penalties. The facts also indicate that the defendant's failure to remit the members' contributions to the 1st plaintiff deprives its employees (the plaintiffs' members) of receiving their rightful pension benefits upon retirement, death, or any other exit from the scheme. Moreover, the facts reveal that the defendant is in violation of its statutory duties and has defaulted in remitting the members' statutory contributions amounting to Tshs. 111,039,604.00 (Tanzanian Page 2 of 6 Shillings One Hundred Eleven Million, Thirty-Nine Thousand Sixty Hundred and Four) as the outstanding principal members' contributions between July 1998 and May 2021. This amount continues to accumulate as long as it remains unpaid, along with penalties amounting to Tshs. 12,428,344.05 (Twelve Million Four Hundred Twenty-Eight Thousand Three Hundred Forty-Four and Five Cents) for the same period. Consequently, the total claim against the defendant is Tshs. 123,467,948.05 (Tanzanian Shillings One Hundred Twenty-Three Million, Four Hundred Sixty-Seven Thousand Nine Hundred Forty-Eight and Five Cents), representing the outstanding principal members' contributions and penalties, which continue to accrue until settled. As a result of the defendant's breach and non-compliance with its statutory obligations to remit the members' contributions, the Plaintiffs have repeatedly demanded compliance to no avail. To substantiate the claimed amount, the plaintiffs have included various documents in the complaint, such as copies of the Certificates of Registration and registration details confirming the defendant's membership with the first plaintiff, inspection reports, exit meeting reports, and a schedule of outstanding contributions and penalties. These Page 3 of 6 documents are deemed to be part of the court's records. It is on these grounds that the plaintiffs have put forth the prayers as outlined above. When the matter was called for the hearing on 25/02/2025, the plaintiffs were represented by Mr. William Mhina, the learned State Attorney, while the defendant entered no appearance in the Court despite being issued with the notices. In his submission, Mr Mhina argued that the matter was filed under the summary procedure pursuant to Order XXXV of the Civil Procedure Code and section 74A (1) of the NSSF Act wherein the 1st plaintiff thought to recover a total sum of Tshs 123,467,948.05/=, comprising the principal amount and accrued penalties from July 1998 to May 2021. The principal amount stands at Tshs. 111,039,604/= while the penalties amount to 12,428,344.05/. Mr William further submitted that since the defendant has failed to file an application for leave to defend, hence he prayed for a summary judgment to be entered in the favour of the plaintiffs in accordance with the law and as the principle established in the case of CRDB Bank vs John Kagimbo Rwambagaza [2002] TLR 117. Additionally, he prayed for the grant of the prayers in the plaint. After going through the submissions of Mr. William together with the attached documents, I am bound to determine whether there are any Page 4 of 6 justifiable reasons to enter a Summary Judgment in favour of the plaintiffs. From the records, it is clear that the defendants were duly served on 6/02/2025 and failed to file leave to defend. It is a cardinal law that where a suit is preferred under the summary procedure and where no leave to appear and defend has been granted, the allegations in the plaint are deemed admitted as per Order XXXV Rule 2(2) of the Civil Procedure Code. The objective of the summary suit articulated in the case of CRDB Bank vs John Kagimbo Rwambagaza, [2002] TLR 117. In that case it was stated that: “The purpose of Order XXXV Summary Procedure is to enable a plaintiff to obtain judgement expeditiously where the defendant has in effect no substantial defence to the suit and prevent the defendant from employing delaying tactics and, in the process postpone the day of reckoning. I am of the settled view that Order XXXV is self- contained in so far as it relates to the suits stipulated there under.” The law also requires that the reliefs prayed for in a summary suit be reliefs available under the summary procedure, as stipulated in the case of Prosper Paulo Massawe & Others vs Access Bank Tanzania Limited, Civil Appeal No. 39 of 2014. Therefore, the reliefs sought in this instance are available in the summary procedure as per section 74A(1) of the NSSF Act, read together with Order XXXV of the Civil Procedure Code. Page 5 of 6 Guided by the above position of the law and from the filed pleadings, this Court finds it just to enter Summary Judgment in favour of the plaintiffs against the defendants as follows; 1. The defendant is ordered to pay the sum of Tshs. 123,467,948.05 (Tanzanian Shillings One Hundred Twenty- Three Million, Four Hundred Sixty-Seven Thousand Nine Hundred Forty-Eight and Five Cents), being unremitted members' contributions and penalties due and payable to Plaintiff by Defendant; 2. Interest thereof at the Court's rate of 7% per annum from the date of delivery of the judgment to the date of full recovery; and 3. The Plaintiffs shall recover the costs arising from the suit. It is so ordered. Right to appeal Explained. DATED at GEITA this 05th day of March 2025. G.V. MWAKAPEJE JUDGE Page 6 of 6