NSSF vs Onesmo TA Emaus Final Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA CIVIL CASE NO. 2590 OF 2025 THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND…….…………..…………..….……….…..1ST PLAINTIFF ATTORNEY GENERAL…………………………………..………...……2ND PLAINTIFF VERSUS ONESMUS THOMAS NYARUBA T/A EMAU ENGLISH MEDIUM PRIMARY SCHOOL……………………………………………….………..DEFENDANT SUMMARY JUDGEMENT Date of last order: 21/03/2025 Date of Judgement: 26/03/2025 MWAKAPEJE, J.: The Plaintiffs, invoking the summary procedure as codified under Order XXXV of the Civil Procedure Code, Cap. 33, R.E. 2019, have instituted the present suit against the Defendant, seeking the issuance of the following reliefs, which are hereby set forth verbatim: 1. The Defendant be ordered to pay the sum of TZS 101,359,153.00 (Tanzanian Shillings One Hundred One Million Three Hundred Fifty-Nine Thousand One Hundred Fifty-Three and Ten Cents Only) being un-remitted members' contributions and penalties due and payable to the Plaintiff by the Defendant as per the plaint. 2. Interest on the decretal sum at the Court rate of 7% from the date of delivery of the Judgment until the same shall be fully satisfied; 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. Page 1 of 6 The factual matrix underpinning this suit, as articulated in the plaint, is as follows: The Defendant was duly enrolled as a contributing employer member of the 1st Plaintiff, holding a valid Membership Certificate of Registration, No. 994749, as evidenced by Annexure "NSSF-1" annexed to the plaint. In accordance with the governing statutory framework applicable to the 1st Plaintiff, the Defendant is statutorily bound to remit mandatory monthly contributions, both on its own behalf and on behalf of its employees, at a prescribed rate of 10% per party, aggregating to a total contribution of 20% of the employee's wages. It is alleged that, notwithstanding this legal obligation, 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 further indicate that the defendant's failure to remit the members' contributions to the 1st plaintiff has deprived its employees (the plaintiffs' members) of their entitled pension benefits upon retirement, death, or other exits from the scheme. Moreover, it is revealed that the defendant has violated its statutory duties and defaulted in remitting the members' statutory contributions amounting to TZS 61,639,554.00 (Tanzanian Shillings Sixty One Million Six Hundred Thirty-Nine Thousand Five Hundred fifty- Four Only) being the outstanding principal members' contributions and penalties of TZS 39,719,599.10 (Tanzania Shillings Thirty-Nine Page 2 of 6 Million Seven Hundred Nineteen Thousand Five Hundred Ninety- Nine and Ten Cents Only) covering various periods between January 2017 to December 2023 which sum continues to accrue as long as it remains due. 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 in the complaint various documents such as copies of the Certificates of Registration and registration details confirming the defendant's membership with the 1st plaintiff, inspection reports, a schedule of outstanding contributions and penalties, exit meeting reports, and demand letters. These 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. At first, when this matter was called for hearing on 28 February 2025, the Court was informed by Mr. William Mhina, the learned State Attorney appearing for the Plaintiffs, that the Defendant had expressed a desire to pursue an out-of-court settlement. In light of this indication, the Court duly granted the parties an opportunity to amicably resolve the dispute. However, when the matter was subsequently called on for necessary orders on 21 March 2025, Mr Mhina informed the Court that the parties had failed to reach a consensus in facilitating the proposed Page 3 of 6 settlement. In these circumstances, Mr Mhina moved the Court to grant a summary judgment in favour of the Plaintiffs. Upon careful consideration of the submissions made by Mr. William Mhina, learned State Attorney for the Plaintiffs, together with the supporting documents on record, and noting that the Defendant has not filed any application for leave to defend within the prescribed period, it is incumbent upon this Court to determine whether sufficient legal grounds exist to warrant the entry of a Summary Judgment in favour of the Plaintiffs. An examination of this Court's record unequivocally establishes that the defendant was duly served, a fact further substantiated by the appearance of their learned counsel, Mr. Erick Tumaini, Advocate, before this Court on 28 February 2025, the date on which the matter had been scheduled for a hearing. In recognition of the parties' indication of a willingness to explore an amicable resolution, the Court, in the interest of justice and procedural fairness, granted them an opportunity to engage in out-of-court negotiations. However, such attempts at settlement proved futile. Notwithstanding the defendant's prior participation through counsel and the failure of the settlement initiative, the defendant, having been properly served, failed to file an application for leave to appear and defend, nor did they enter an appearance when the matter was Page 4 of 6 subsequently called on 21 March 2025. In view of the defendant's inaction and by the operation of Order XXXV Rule 2(2) of the Civil Procedure Code, the allegations articulated in the plaint stand as uncontroverted and are thus deemed to have been admitted as a matter of law. In the case of CRDB Bank vs John Kagimbo Rwambagaza, [2002] TLR 117, it was stated that: "The purpose of Order XXXV Summary Procedure is to enable a plaintiff to obtain judgment 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 underscores that the reliefs sought in a suit instituted under summary procedure must strictly conform to the nature of reliefs contemplated within the ambit of the summary process. See the case of Prosper Paulo Massawe & Others v. Access Bank Tanzania Limited, Civil Appeal No. 39 of 2014, wherein it emphasised the necessity of ensuring that claims pursued under summary procedure remain within the confines prescribed by law. Accordingly, the reliefs sought in the present matter explicitly fall within the ambit of the summary procedure as prescribed under section 74A (1) of the NSSF Act, read conjunctively with the procedural framework enshrined in Order XXXV of the Civil Procedure Code. As such, the Page 5 of 6 invocation of the summary procedure is both procedurally apposite and legally sustainable within the confines of the governing statutory regime. Guided by the foregoing authorities and upon meticulous scrutiny of the pleadings and supporting documentation submitted before this Court, it is deemed just and proper to invoke the summary procedure and enter judgment in favour of the plaintiffs against the defendants in the following terms: 1. The defendant is ordered to pay the sum of TZS 101,359,153.00 (Tanzanian Shillings One Hundred One Million Three Hundred Fifty-Nine Thousand One Hundred Fifty-Three and Ten Cents Only) being unremitted members' contributions and penalties due and payable to the 1st 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 26th day of March 2025. G.V. MWAKAPEJE JUDGE Page 6 of 6