Summary Judgment NSSF vs Sayyida Jilala

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA CIVIL CASE NO. 1201 OF 2025 THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND…….…………..…………..….……….…..1ST PLAINTIFF ATTORNEY GENERAL…………………………………..………...……2ND PLAINTIFF VERSUS SAYIDA DAVID JILALA T/A TRUE VISION AND PRE PRIMARY SCHOOL……..…………..DEFENDANT SUMMARY JUDGEMENT Date of last order: 14/02/2025 Date of Judgement: 18/02/2025 MWAKAPEJE, J.: The Plaintiffs herein, by way of summary procedure outlined in Order XXXV of the Civil Procedure Code, Cap 33, R.E 2019, initiated this suit against the Defendant seeking the following orders, as I reproduce them hereunder: 1. The Defendant to be ordered to pay the sum of Tshs. 14,220,500 (Tanzanian Shillings Fourteen Million Two Hundred Twenty Thousand Five Hundred) Page 1 of 9 being unremitted members' contributions and penalties due and payable to Plaintiff by Defendant as per paragraph 10 hereinabove. 2. The defendant to be ordered to pay interest on the decretal sum from January 2022 when the sum accrued to the date of the judgment at an overall lending interest rate of 15.23% per annum as published by the Bank of Tanzania Monthly Economic Review, January 2022 publications. 3. 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; 4. Cost of and incidental to the filing of the suit; and 5. Any other and further relief this Honorable Court shall deem fit and just to grant. Before digging into the essence of the matter, it is necessary to recount the facts that have led to the current suit as outlined in the plaint. The defendant was enlisted as a contributing employer member of the 1st plaintiff with a Membership Certificate of Registration Number 1012584 as per annexure "NSSF- 1". As per the law governing the 1st Plaintiff, the Page 2 of 9 defendant is mandated to make obligatory contributions every month, as well as those of its employees, at a rate of 10% for each, totalling 20% of the employee's wages. It is further alleged that despite this legal requirement, 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 also indicate that the defendant's failure to remit the members' contributions to the 1st plaintiff deprives its employees (the plaintiffs' members) of receiving their rightful pension benefits upon retirement, death, or any other exit from the scheme. Moreover, the facts reveal that the defendant is in violation of its statutory duties and has defaulted in remitting the members' statutory contributions amounting to Tshs. 14,182,000 (Tanzanian Shillings Fourteen Million One Hundred Eighty-Two Thousand) as the outstanding principal members' contributions between July 2022 and June 2024. This amount continues to accumulate as long as it remains unpaid, along with penalties amounting to Tshs 38,580 (Thirty-Eight Thousand Five Hundred) for the same period. Consequently, the 1st Page 3 of 9 plaintiff's total claim against the defendant is Tshs. 14,220,500 (Tanzanian Shillings Fourteen Million Two Hundred Twenty Thousand Five Hundred), representing the outstanding principal members' contributions and penalties, which continue to accrue until settled. 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, exit meeting reports, and a schedule of outstanding contributions and penalties. 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 case was called for the hearing on 14/02/2025, the Plaintiffs were represented by Mr William Mhina, the learned State Attorney, while the defendant was represented by Mr John Paul Hombo, learned advocate. During his submissions, Mr. Mhina apprised this Court Page 4 of 9 that the Defendant had not lodged any application seeking leave to appear and defend the suit. Due to this conspicuous oversight, he implored the Court to proceed by issuing a summary judgment against the Defendant in accordance with Section 74A of the NSSF Act, Cap 50 R.E. 2018 and Order XXXV of the Civil Procedure Code, (CPC), Cap 33 R.E. 2022. Mr. Hombo, on the other hand, prayed for additional time to apply for leave, stating that he had only been engaged by the defendant on the evening before the scheduled hearing date. He contended that his client was unfamiliar with court procedures, which, in his view, justified the request. However, given that the defendant had ample time to take the necessary steps and bearing in mind the established principle that ignorance of the law is not a valid excuse, this court found the request for additional time unpersuasive. Furthermore, the defendant's conduct appeared to be a deliberate attempt to delay the proceedings. Accordingly, this court rejected Mr. Hombo's prayer for more time and considered the defendant failed to apply for leave to defend his case. Considering the procedural posture of this case, I am satisfied that summary judgment is warranted. I shall now proceed to render my decision accordingly. Page 5 of 9 Pursuant to Order XXXV Rule 2(2) of the Civil Procedure Code, Cap. 33, it is a firmly established legal doctrine that in summary proceedings, where a defendant fails to secure leave to appear and defend, the averments delineated in the plaint are considered confessed, thereby entitling the plaintiff to summary judgment. This principle serves to bolster judicial efficiency by preventing defendants from presenting frivolous or vexatious defences that would otherwise prolong the adjudication of cases involving liquidated demands, promissory notes, and other unmistakable monetary obligations, as envisaged under Order XXXV Rule 1. In the case of CRDB Bank Limited v. John Kagimbo Lwambagaza [2002] TLR 117, it was emphatically stated that: "The purpose of Order XXXV: Summary Procedure is to enable a Plaintiff to obtain Judgement expeditiously where the Defendant has in effect no substantial defense 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 suits stipulated thereunder." Furthermore, it is trite law that reliefs sought in a summary suit must strictly conform to those permitted under summary procedure. Such suits are designed for specific categories of claims, including liquidated demands, promissory notes, bills of exchange, and other unequivocal Page 6 of 9 monetary obligations, as prescribed under Order XXXV of the Civil Procedure Code, Cap. 33; see Prosper Paulo Massawe & Others v. Access Bank Tanzania Ltd (Civil Appeal No. 39 of 2014) [2021] TZCA 321 (22 July 2021). Against this legal backdrop, the issue for determination is whether the instant suit falls within the ambit of cases contemplated under the summary procedure. Learned counsel Mr Mhina has prayed that this Court consider the matter as such, in accordance with Order XXXV of the Civil Procedure Code (CPC), read together with Section 74A(2) of the NSSF Act, Cap. 50 R.E. 2018, and consequently, enter summary judgment against the defendant. Section 74A(2) of the NSSF Act expressly provides: "(2) Every contribution and additional contributions due to the Fund may be recovered by a summary suit under order XXXV of the Civil Procedure Code at any time within twelve years after the date on which it is due." [Emphasis Supplied] This provision, similar akin to section 18(1) of the same Act, underscores that recovering members' contributions is a specialised legal process involving summary procedures under Order XXXV of the Civil Procedure Code (CPC). It confirms that unpaid contributions are statutory obligations enforceable through expedited legal mechanisms. Accordingly, I am satisfied that the present claim constitutes a monetary obligation Page 7 of 9 owed to the 1st Plaintiff and thus appropriately falls within the scope of summary procedure, justifying expedited enforcement without undue delay. After thoroughly examining the factual circumstances, documentary evidence, and relevant statutory and established judicial principles, I conclude that the plaintiffs herein have presented a compelling case justifying the grant of summary judgment. Consequently, summary judgment is granted in favour of the plaintiffs for the following reliefs: (1) The defendant is ordered to pay 1st plaintiff the sum of Tshs. 14,220,500 (Tanzanian Shillings Fourteen Million Two Hundred Twenty Thousand Five Hundred) being unremitted members' contributions and penalties due and payable to Plaintiff by Defendant; (2) The defendant is ordered to pay the plaintiff interest on the decretal sum from January 2022, when the sum accrued to the date of the judgment at an overall lending interest rate of 15.23% per annum as published by the Bank of Tanzania Monthly Economic Review, January 2022 publications. Page 8 of 9 (3) Defendant to pay the 1st plaintiff 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 (4) The Plaintiffs shall recover the costs arising from the suit. It is so ordered. Right to appeal explained. DATED at GEITA this 18th day of February 2025. G.V. MWAKAPEJE JUDGE Page 9 of 9