NSSF vs Paulando Summary Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA CIVIL CASE NO. 5247 OF 2025 THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND…….…………..…………..….……….…..1ST PLAINTIFF ATTORNEY GENERAL…………………………………..………...……2ND PLAINTIFF VERSUS PAULANDO ENTERPRISES (T) LIMITED……………………………. DEFENDANT SUMMARY JUDGEMENT Date of last order and judgement: 08/04/2025 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 148,130,707.03 (Tanzanian Shillings One Hundred Thirty Thousand Seven Hundred and Three Cents only) being unremitted 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. 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 Page 1 of 6 Registration, No. 997828, 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 49,201,118.03. (Tanzanian Shillings Forty-Nine Million Two Hundred One Thousand One Hundred Eighteen and Three Cents only.), being the outstanding principal members' contributions and penalties of TZS 98,929,859.00 (Tanzania Shillings Ninety-Eight Million Nine Hundred Twenty-Nine Thousand Eight Hundred Fifty-Nine Only) covering various periods between August Page 2 of 6 2022 and September 2024, the 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. When the matter was called for the hearing on 08/04/2025, the plaintiffs were represented by Mr. William Mhina, a learned State Attorney, while the defendant made 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 sought to recover a total sum of TZS 148,130,707.03 (Tanzanian Shillings One Hundred Thirty Thousand Seven Hundred and Three Cents only.) comprising the principal amount and accrued penalties from August 2022 to September Page 3 of 6 2024. The principal amount stands at TZS 49,201,118.03 (Tanzanian Shillings Forty Nine Million Two Hundred One Thousand One Hundred Eighteen and Three Cents only), while the penalty amounts to TZS 98,929,859.00 (Tanzania Shillings Ninety-Eight Million Nine Hundred Twenty-Nine Thousand Eight Hundred Fifty Nine Only). 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 prayers in the plaint. 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. Having been properly served, the defendant failed to file an application for leave to appear and defend, nor did they enter an appearance when the matter was subsequently called on 8 April 2025. In Page 4 of 6 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 thereunder." 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 invocation of the summary procedure is both procedurally apposite and legally sustainable within the confines of the governing statutory regime. Page 5 of 6 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 148,130,707.03 (Tanzanian Shillings One Hundred Thirty Thousand Seven Hundred and Three 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 8th day of April 2025. G.V. MWAKAPEJE JUDGE Page 6 of 6