judgment NSSF Vs

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA AT MWANZA CIVIL CASE NO. 20108 OF 2024 THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND ………………………….…. 1ST PLAINTIFF THE ATTORNEY GENERAL ………………………………………….. 2ND PLAINTIFF VERSUS EDEN SCHOOLS LIMITED ………………….………………………..…. DEFENDANT JUDGEMENT 8th November, 2024 CHUMA, J. The plaintiffs herein filed this suit against the defendant seeking a judgment and decree as follows; (i) The Defendant be ordered to pay the sum of TZS. 88,000,000 (Say Tanzanian Shillings Eighty-Eight Million Only) being the outstanding principal members’ contribution covers various periods between June 2012 to February 2017, January 2019 to December 2021, May 2022 to December 2022, and August 2023 to December 2023 as per paragraph (9) hereinabove. (ii) Defendant be ordered to pay the sum of TZS 20,914,400.00 (Say Tanzanian Shillings Twenty Million Nine Hundred Fourteen Thousand and Four Hundred Only) being the outstanding penalties for late payment of statutory contributions. (iii) 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. 1 (iv) Cost of and incidental to the filing of the suit, and (v) Any other and further relief as this Honourable Court shall deem fit and just to grant. When this matter was placed before one for necessary orders on 18.9.2024 Ms. Aisha State Attorney appeared for the plaintiffs while the defendant entered no appearance in court. In her submission, Ms. Aisha State Attorney argued that the defendants were served on 17.9.2024 a service was acknowledged and they ought to file a written statement of defence which they never filed. Today is also absent without notice. Since the defendant failed to appear without any reasonable excuses or leave from this court and because there is no written statement of defence filed by the defendant, she urged this court to proceed ex-parte under Order VII Rule 14 (1) of Civil Procedure Code on 8th October 2024. This necessitated ordering that the matter proceed ex-parte. On 1st November 2024, Mr. Jovin entered an appearance on behalf of Mr. Joseph and stated that the defendant was away in Rwanda for a burial ceremony, however, because there was no written statement of defence filed before the court then the court proceeded to hear the matter ex-parte according to its previous order. 2 From the submission of Ms. Aisha State Attorney and having time to go through the pleadings together with the attached documents and the evidence of the plaintiff’s witness, I am duty bound to determine whether there is justifiable reason to enter ex-parte judgment in favor of the plaintiffs. The record reveals as rightly submitted by Ms. Aisha State Attorney that the defendant was duly served. And that no written statement of defence from the defendant ever preferred. Before the commencement of the trial, the following issues were drawn to guide the conduct of the proceedings: - 1. Whether the defendant is obliged to pay the statutory contribution of the member or employee's wage to the plaintiff. 2. Whether the defendant breached the said obligation. 3. What relief(s) are the parties entitled to. I will tackle the issues following the sequence in which they were framed, and I will choose to combine the first and second issues. These are whether the defendant is obliged to pay the statutory contribution of the member or employee's wage to the plaintiff and whether the defendant breached the said obligation. The sole witness, PW1, Secilia Motatilo Johannes, testified that she is a Senior Compliance Officer of the 1st plaintiff (NSSF). That defendant is the 1st plaintiff customer with 3 registration No. 710210. The certificate of registration bears the logo of NSSF and, the name and signature of the Director General of NSSF, the said certificate was admitted and marked as exhibit PE1. She testified further that after registration the defendant is required to remit members' monthly contribution to the plaintiff to a tune of 20%, but to date, the defendant failed to contribute a total of 108,914,400/=being outstanding contributions plus the accumulated penalties, and that the defendant breached its statutory obligations, as he has defaulted remittance of members principal contribution amounting to TZS. 88,000,000/= (Tanzanian Shillings Eighty Eight Million Only) being the outstanding principal member's contributions cover various periods between June 2012 to February 2017, January 2019 to December 2021, May 2022 to December 2022 and August 2023 to December 2023, and the outstanding penalties for late payment of statutory contributions amounting TZS 20,914,400.00 (Say Tanzanian Shillings Twenty Million Nine Hundred Fourteen Thousand Four Hundred Only) which sum continues to accrue as long as it remains due. She testified that all debts are found through inspection after issuing a notice of inspection informing the intention to conduct such inspection. And the all required documents prepared by the defendant include the 4 Register of all Employees, Pay Roll, Master Roll or Wages Records, NSSF receipt, SDL Skills Development levy, Income Tax Return, Contract, Business Licence of Employer, etc. Such notice is then followed by an actual inspection which was conducted on 16.2.2024 and it involved both parties from the plaintiff side and the representatives from the defendant. In this matter, the defendant was represented by the School Director MS. Mbambas. What follows is the exit meeting where the findings are normally revealed for confirmation. The said report containing findings is then signed by both parties. She stated that after endorsing the exit meeting report, the exit form bears the name of the employer and National Emblem, then the preparation of the inspection report containing details of the employer, and supervisor recommendation by an officer carrying the inspection from NSSF. The referred documents i.e. notice of inspection bear the NSSF logo and National Emblem simply on it. The Statutory Inspection Report, Exit Meeting Report, and Inspection Report are admitted and marked as exhibit PE2, PE3 and PE4 respectively. At the end they prepare a schedule of arrears of members on statutory contribution indicating the outstanding claims of each member per month, these documents were submitted to the defendant and 5 received. The schedule is from June 2012, to February 2017, from January 2019 to December 2021, from May 2022 to December 2022, and August 2023 to December 2023 making a total debt from the employees’ contribution to TZS. 88,000,000/-, with penalties to the tune of TZS. 20,914,400/- making a total of TZS. 108,914,400/= The schedule of arrears contains the name of the inspector, and the name and signature of the employer. Penalty Notice bears similar features which were admitted and marked as exhibit PE5 and PE6 respectively. She also, testified that they served the defendant with 14 days demand notice received on 15.3.2024, again they reminded the defendant via 7 days demand notice received on 18.4.2024, and a penalty on late payment of contribution. The documents bear two logos NSSF and National Emblem, signed by the representative of the defendant which were admitted and marked as exhibit PE7, PE8, and PE9 respectively. Ms. Aisha urged the court to grant her prayer. It is cardinal law that, he who alleges must prove actori incumbit probatio or ei incumbit probation qui dicit and this burden of proof never shifts. It was the duty of the plaintiffs to prove the allegations as per sections 110 and 115 of the Evidence Act, Cap. 6 R.E. 2019, for ease reference I will reproduce as follows: - 6 “110.- (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 115. In civil proceedings when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” The imperative requirement under the cited provision was given an impetus in Barelia Karangirangi Vs. Asteria Nyalwambwa, CAT-Civil Appeal No. 237 of 2017 (unreported); and Hemed Issa Vs. Mohamed Mbilu [1984] TLR 113, wherein it was held as follows: “It is similar that in civil proceedings, the party with Legal burden also bears the evidential burden and the Standard in each case is on a balance of probabilities.” Also, the decisions of Anthony M. Masanga Vs. Penina (Mama Ngesi) & Another, Civil Appeal No. 118 of 2014 (Unreported), cited with approval the case of In Re B [2008] UKHL35, where Lord Hoffman in defining the term balance of probabilities states that: - ''If a legal rule requires a fact to be proved (a fact in issue), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates in a binary system in 7 which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, The doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it. A value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned to and the fact is treated as having happened” In all cases, emphasis was laid on the fact that the burden of proof which is both legal and evidential lies on the person who alleges, and failure to discharge the burden constitutes a failure to prove the case. The plaintiffs contend that the defendant has defaulted remittance of members' principal contributions amounting to TZS. 88,000,000/= (Tanzanian Shillings Eighty Eight Million Only) being the outstanding principal member's contributions cover various periods between June 2012 to February 2017, January 2019 to December 2021, May 2022 to December 2022 and August 2023 to December 2023, and the outstanding penalties for late payment of statutory contributions amounting TZS 20,914,400.00 (Say Tanzanian Shillings Twenty Million Nine Hundred Fourteen Thousand Four Hundred Only)which sum continues to accrue as long as it remains due. The 1st and 2nd issues are answered in the affirmative. 8 Guided by the above position of law and from the filed pleadings and testified evidence of the plaintiff's witness. It is my conclusion that the plaintiffs have advanced a credible case that deserves nothing except to grant it as prayed against the defendant as follows: - (1) I order the defendant to pay the sum of TZS. 88,000,000/-, being an outstanding principal member’s contribution. (2) The defendant should also pay the sum of TZS. 20,914,400.00/, being the outstanding penalties for late payment of statutory contributions. (3) The defendant shall pay interest in the decretal sum at the court rate of 7% from the date of delivery of this judgment until the same is fully paid. (4) The defendant is also condemned to pay the cost of the suit. It is so ordered. DATED at MWANZA this 8th day of November, 2024. W.M. CHUMA JUDGE 9 Ex-parte Judgement delivered before the court Ms. Aisha Salehe and Ms. Safina Rwegarulira both State Attorney for the plaintiffs in the absence of the defendant this 8th day of November, 2024. C. KISONGO DEPUTY REGISTRAR 10