NSSF V Nantaika Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA AT MWANZA CIVIL CASE NO. 21202 OF 2024 THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND ………………………….…. 1ST PLAINTIFF THE ATTORNEY GENERAL ………………………………………….. 2ND PLAINTIFF VERSUS NANTAIKA JUMBE MAUFI T/A NAMWA STATIONARY ………… DEFENDANT JUDGEMENT 20th & 21st February 2025 CHUMA, J. The suit from which this ex-parte judgment emanates has been preferred by the plaintiffs herein against the defendant seeking a judgment and decree as follows; (i) The Defendant be ordered to pay the sum of TZS. 5,700,000/= (Say Tanzanian Shillings five million Seven Hundred Thousand only being the outstanding principal members’ contribution covers various periods between October 2017 to August 2023. (ii) The Defendant be ordered to pay the sum of TZS 375,000 (Say Tanzanian Shillings Three Hundred Seventy- Five Thousand 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. (iv) Cost of and incidental to the filing of the suit, and 1 (v) Any other and further relief as this Honourable Court shall deem fit and just to grant. At the hearing of this suit, the plaintiffs were in attendance through Ms. Safina State Attorney while the defendant on whom service was effected, still entered no appearance. In this suit, the plaintiff summoned only one witness to establish the filed claims. In his evidence PW1, Kelvin Muslimu Babu works with NSSF Mwanza station as a Compliance officer whose roles inter-alia are to register members and employers and to ensure that they submit monthly contributions to NSSF. And that the defendant is the 1st plaintiff customer with registration No. 14491 registered on 12/8/2015. He testified further that after registration the defendant is required to remit members' monthly compulsory contribution and that of its employee to a tune of 10% each making a total of 20%, but to date, the defendant failed to contribute a total of Tsh 5,700,000/=and Tsh 375.000/= being outstanding contributions plus the accumulated penalties. He testified that all debts were found through inspection on 5/10/2023 after issuing a notice of inspection informing the intention to conduct such routine inspection which is normally done after six months of inspection. 2 After inspection, the defendant was issued with 14 days demand notice to settle the debt revealed involving a schedule of arrears. The defendant had a debt of Tshs. 5,700,000/= and a penalty of Tshs. 375,000 making a total of Tshs. 6,075,000/=. The schedule of arrears covers a period from October 2017 to August 2023. Certificate of Registration, notice of inspection, Exit Meeting Report, Schedule for arrears, penalty notice, and 14-day demand notice were all tendered, admitted, and marked PE1 to 6. PW1 finally appealed to this court to enter judgment in favor of the plaintiff in all reliefs sought in the filed plaint. Having analyzed the evidence adduced by PW1 I am invited to determine the following; 1) Whether the defendant is obliged to pay the statutory contribution of the member or employee's wage to the plaintiff. 2) Whether the obligations were complied with and 3) What relief(s) are the parties entitled to. Before embarking on tackling the above issues it is necessary to restate the parameters of proof in civil proceedings. Section 110 and 111 of the Evidence Act, Cap. 6 is explicit that he who alleges has a burden of proof and the standard is on a balance of probabilities. The law is also settled that such burden of proof never shifts to the adverse party until 3 the party on whom the onus lies discharges his. 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.” See also the case of Paulina Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 (unreported). Guided by the above position of law I will now start discussing the first issue on whether the defendant is obliged to pay the statutory contribution of the member or employee's wage to the plaintiff. The sole witness, PW1, Mr. Kelvin Muslimu Babu a compliance officer whose role inter-alia is to register members and employers and to ensure that they submit monthly contributions to NSSF. That defendant is the 1st plaintiff customer with registration No. 14491 registered on 12/8/2015 PE1. Hence by being registered as herein above stated becomes a member with a duty bound to make monthly compulsory contributions. The first issue without much ado is answered affirmatively. 4 As to the second issue, it is evident from the testified evidence by PW1 that the defendant failed to remit the member's contributions to the plaintiff for some of the month as per a routine inspection conducted on 5/10/2023. To support his evidence PW1 tendered a Notice of inspection, Exit Meeting Report, Schedule for arrears, penalty notice, and 14days demand notice were all tendered, admitted, and marked PE1 to 6 indicating failure of the defendant to comply with statutory duty resulting in a debt worth Tshs. 6,075,000. And that the schedule of arrears covers a period from October 2017 to August 2023. The above testimony proves the assertion that the defendant ignored or failed to perform his obligation. The above evidence leads to a third issue on what reliefs are the parties entitled to. From the foregoing position of law the filed pleadings and the testified evidence of the plaintiff’s witness PW1, it is my finding that the plaintiffs have advanced a credible case that deserves nothing more than allowing all reliefs sought in a filed plaint here in above highlighted. I so order. DATED at MWANZA this 21st day of February 2025. W.M. CHUMA JUDGE 5 Judgment delivered in court before Mr. Merumba Senior State Attorney for the plaintiffs and in absence of the defendant this 21st day of February 2025. W.M.CHUMA JUDGE 6