The National Trustee of the National Social Security Fund Another vs MS Kaserkandis Construction and Transport Limited Civil Case No

IN THE HIGH COURT OF TANZANIA SUB-REGISTRY OF GEITA AT GEITA CIVIL CASE NO.HC/GTA/CIV/CIV/6107/2024 THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND.................................................................... 1st PLAINTIFF THE ATTORNEY GENERAL................................................................... 2nd PLAINTIFF VERSUS M/S KASERKANDIS CONSTRUCTION AND TRANSPORT LIMITED............................................................................... DEFENDANT SUMMARY JUDGMENT (Under Order XXXV Rule 2 (2) (a) and (b) of the Civil Procedure Code, Cap 33 R:E 2019. Date of last Order: 29/04/2024 Date ofJudgment: 29/04/2024 K. D. MH I NA, J. This is a summary suit involving the compulsory contribution of employees between the National Social Security Fund and the AttorneyGeneral [hereinafter to be referred to as the first and second plaintiff, respective! ly] against Kaserkandis Construction And Transport Limited [hereinafter to be referred to as the defendant] filed under Order XXXV of 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, totalling TZS 497,471,752.33 (covering various periods between May 2021 and December 2023), and the outstanding penalties for late payment of statutory contributions, amounting to TZS 464,128,473.29. 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 25 March 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 within 21 days, as per the law. Today, when the suit was called for hearing, Ms. Nancy Wanda, the State Attorney for the plaintiffs, informed the Court that the defendant was duly served with the summons, which they received on 8 April 2024. Thus, 21 days expired, and the defendant failed to appear and filed a leave to appear and defendant the suit Therefore, she 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. In the plaint, the plaintiffs prayed for; (i) The Defendant to be ordered to pay the sum of TZS 961,600,225.62 being un-remitted members' contributions plus accumulated 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 this Court shall deem fit and just to grant. Flowing from above, the law is clear that when the defendant is served with the summons to file leave and 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 [2002J TLR 117. 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 judgment for the Plaintiffs and proceed to decree as follows; a. The defendant is ordered to pay TZS 961,600,225.62, which includes unremitted members' contributions plus accumulated 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. 29/04/2024.