Judgment NSSF Vs

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA AT MWANZA CIVIL CASE NO. 19574 OF 2024 THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND ………………………….…. 1ST PLAINTIFF THE ATTORNEY GENERAL ………………………………………….. 2ND PLAINTIFF VERSUS POWER SHIELD LIMITED …………………………………………..…. DEFENDANT JUDGEMENT 8th November, 2024 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. 42,362,379 (Say Tanzanian Shillings Fourty-Two Million Three Hundred Sixty- Two Thousand Three Hundred and Seventy-Nine Only) being the outstanding principal members’ contribution covers various periods between March, 2019 to January, 2020 as per paragraph (9) hereinabove. (ii) The Defendant be ordered to pay the sum of TZS 1,592,656.65 (Say Tanzanian Shillings One Million Five Hundred Ninety-Two Thousand Six Hundred Fifty-Six and Sixty-Five Centy Only) being the outstanding penalties for late payment of statutory contributions. 1 (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 (v) Any other and further relief as this Honourable Court shall deem fit and just to grant. When this matter was placed before for necessary orders on 18.9.2024 Ms. Nancy Senior 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 25.9.2024 through affixation at the defendant's office, and they ought to file a written statement to defend 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 28th October 2024. This necessitated ordering that the matter proceed ex parte. At the hearing of this suit on 6th November 2024, the plaintiffs were in attendance through Mr. William State Attorney while the defendant on whom service was effected, still entered a non-appearance, and from his submission and having time to go through the pleadings together with the 2 attached documents, 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 Mr. William 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. What relief(s) are the parties entitled to. I will tackle the issues following the sequence in which they were framed i.e. 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. Silver Kagaruki, testified that he is a Compliance Officer of the 1st plaintiff (NSSF) and one of his roles 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. 1013349 The certificate of registration bears the logo of NSSF and National Emblem, the said certificate was admitted and marked as exhibit PE1. He testified further that after registration the defendant is required to remit members' monthly contribution to the plaintiff to a tune of 20%, 3 but to date, the defendant failed to contribute a total of TZS. 43,955,035.65/- being outstanding contributions plus the accumulated penalties, and the defendant breached its statutory obligations, as he has defaulted remittance of members' principal contribution amounting to TZS. 42,362,379 (Say Tanzanian Shillings Forty-Two Million Three Hundred Sixty-Two Thousand Three Hundred and Seventy-Nine Only) being the outstanding principal member's contributions covers various periods between March 2019, January 2020, and the outstanding penalties for late payment of statutory contributions amounting TZS. 1,592,656.65/- (Say Tanzanian Shillings One Million Five Hundred Ninety-Two Thousand Six Hundred Fifty-Six and Sixty-Five Centy Only) which sum continues to accrue as long as it remains due. He testified that all debts are found through inspection after issuing a notice of inspection informing the intention to conduct such inspection on 17.2.2020. And the all required documents prepared by the defendant include the Register of all Employees, Pay Roll, NSSF receipt, SDL Skills Development levy, Income Tax Return, and other information from PSSF and WCF. The notice bears the defendant's address, NSSF Logo, and my signature and it was admitted and marked as exhibit PE2. Such notice was then followed by an actual inspection which was conducted on 28.3.2020 and it involved both parties from the plaintiff side and the representatives 4 from the defendant, which revealed the debt. 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. He 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 simple on it and the name of the defendants. The schedule of arrears and penalties is admitted and marked as exhibit PE3. At the end, they prepare a schedule of arrears reports of members on statutory contributions indicating the outstanding claims of each member per month, handed over to their supervisor. The report contains the NSSF logo, my name, the name of the employer, and the location where the said document was submitted to the defendant and received, it was admitted and marked as exhibit PE4. He also, testified that they served the defendant with a demand notice on various dates i.e. on 8.4.2020, 8.9.2020, and 25.6.2021 but nothing was done by the defendant despite his receipt. The demand notes can be identified via the National Emblem and NSSF Logo, the name of 5 the employer, and debt and signed by NSSF’s supervisor which was admitted and marked as exhibit PE5, PE6, and PE7 respectively. He urged this court to order the defendant to pay the outstanding debt of TZS. 42,362,379/- the outstanding principal member's contribution that covers a period between March 2019 to January 2020 and penalties for late payment of the statutory contribution of TZS. 1,592,656.65/-, cost of the suit and other reliefs sought in the filled plaint. 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: - “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.” 6 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 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.” 7 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. 42,362,379 (Say Tanzanian Shillings Forty-Two Million Three Hundred Sixty-Two Thousand Three Hundred and Seventy-Nine Only) being the outstanding principal member's contributions covers various periods between March 2019, January 2020, and the outstanding penalties for late payment of statutory contributions amounting TZS. 1,592,656.65/- (Say Tanzanian Shillings One Million Five Hundred Ninety-Two Thousand Six Hundred Fifty-Six and Sixty-Five Centy Only) which sum continues to accrue as long as it remains due. The 1st issue is answered in the affirmative. Guided by the above position of law and from the filed pleadings and the testified evidence of the plaintiffs 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. 42,362,379/-, being an outstanding principal member’s contribution. 8 (2) The defendant should also pay the sum of TZS. 1,592,656.65/-, 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